Holding

The trial court’s decree in favour of the plaintiffs was restored because the defendants failed to prove title or adverse possession for the requisite period, and the sale deed relied upon was a fabricated document.

Summary

The plaintiffs, heirs of their father who had mortgaged a government‑purchased plot, discovered the property after clearing the loan and found the defendant in unauthorized possession. They sued for declaration of title, possession, permanent injunction and mesne profits. The trial court held that the plaintiffs had established title and the defendant had neither title nor adverse possession for the requisite twelve years, and decreed in their favour. The High Court reversed this judgment on a technical discrepancy in the katha number, without examining the evidence. The Supreme Court restored the trial court’s decree, holding that the defendant’s sale deed was fabricated, he failed to prove any title or continuous hostile possession for twelve years, and therefore could not claim ownership by adverse possession. The appeal was allowed and the trial court’s judgment reinstated.

Issues considered

Whether the plaintiffs have established title and entitlement to possession of the suit property.
Whether the defendant has proved any title to the suit property.
Whether the defendant has perfected title by adverse possession for twelve years, thereby barring the suit by limitation.

Legislation cited

Transfer of Property Act, 1882s. 53A

Subjects

titleadverse possessionprescriptionproperty lawcivil suitdeed fraudlimitationpossession

Judgment

[2009] 10 S.C.R. 615

L.N. ASWATHAMA & ANR. A
v.
P. PRAKASH
(Civil Appeal No. 4125 of 2009)

APRIL 21, 2009
B
[R.V. RAVEENDRAN AND HARJIT SINGH BEDI, JJ.]

SUIT:

Suit for declaration of title, possession, permanent c
injunction and mesne projects - Plaintiffs came to know of the
property only when they cleared the bank loan taken by their
father mortgaging the property - Plaintiffs claimed that
defendants in unlawful possession - Trial Court decreeing the
suit - High Cowt reversing it - On appeal, Held : Neither the
0
title to the property nor the adverse possession thereof proved
by defendants - Hence Trial Court's well considered judgment
restored - High Court's judgment set aside - Adverse
possession.

The suit property was purchased by one 'N', who E
died leaving all his properties to his sons (the plaintiffs)
• J under a will. He had mortgaged the suit property as also
other properties to a Bar.k. The plaintiffs were
prosecuting their studies at the time of their father's
death. Plaintiffs became aware of the suit property only F
when they cleared the bank loan and got back the title
deeds. They traced the suit property and found the
defendant in unauthorized possession. Therefore, they
filed the suit for declaration of title, possession,
permant:nt injunction and mesne profits. The trial court G
decreed the Suit. On appeal, the High Court reversed the
trial court's judgment and dismissed the suit. Hence the
appeal.

615 H
616 SUPREME COURT REPORTS [2009] 10 S.C.R.

A Allowing the appeal, the Court

HELD : 1. The High Court has neither discussed the
evidence relating to identity of the suit property
nor held that the trial court's finding that plaintiffs
have established their title and identity of the suit property
8
was erroneous. The High Court has rejected the entire
case of the plaintiffs merely on the ground that in the
mortgage suit of the Bank, the Katha number of the
property is wrongly given. The plaintiffs have offered a
C simple and acceptable explanation in regard to the wrong
Katha number. [Para 12) [625-A-C]

2. The first appellate court can re-appreciate
evidence and record findings differe .. t from those
recorded by the trial court. It is well settled that if the
D appraisal of evidence by the trial court suffers from
material irregularity, as for example when its decision is
based on mere conjectures and surmises, or when its
decision relied upon inadmissible evidence or ignores
material evidence or when it draws inferences and
E conclusions who do not naturally or logically flow from
the proved facts, the appellate court is bound to interfere
with the findings of the trial court. It is equally well settled
that where the trial court has considered the entire
evidence and recorded several material findings, the first
F appellate court would not reverse them on the basis of
conjectures and surmises or without analyzing the
relevant evidence in entirety. As the final court of facts,
if the first appellate court is reversing the judgment of the
trjal court, it is bound to independently consider the
G entire evidence. The High Court has ignored these well
settled principles. [Para 8) [622-E-H; 623-A]

3. In law, possession follows title. The plaintiffs
having established title to the suit property, will be
entitled to decree for possession, unless their right to the
H
L. N. ASWATHAMA & ANR. v. P. PRAKASH 617

suit property was extinguished, by reason of defendant A
being in adverse possession for a period of twelve years
prior to the suit. [Para 13] [625-E-F]

4. The sale deed dated 18.11.1985 alleged to have
been executed by Gowramma (Ex.01 is a certified copy)
8
was clearly a fabricated document in regard to an non-
existing site obviously with the intention of laying claim
over the suit property. The said deed did not convey any
right, title or interest to t.he defendant in respect of the
suit property. [Para 15] [627-F-G]
c
~· To establish a claim of title by prescription, that is
adverse possession for 12 years or more, the possession
of the claimant must be physical/actual, exclusive, open,
uninterrupted, notorious and hostile to the true owner for
a period exceeding twelve years. It is also well settled D
that long and continuous possession by itself would not
constitute adverse possession if it was either permissive
possession or possession without animus possidendi.
The pleas based on title and adverse possession are
mutually inconsistent and the latter does not begin to E
operate until the former is renounced. Unless the person
possessing the property has the requisite animus to
possess the property hostile to the title of .the true owner,
the period for prescription will not commence. [Paras 17
and 18] [629-A-C] F

Periasami vs. P. Periathambi 1995 (6) SCC 523; Md.
Mohammad Ali (dead) by LRs. vs. Jagdish Kalita 2004 (1)
SCC 271 and P. T. Munichikkanna Reddy vs. Revamma
2007 (6) sec 59 - relied on.
G
Mohan Lal (Dead through LRs) vs. Mirza Abdul Gaffar
ci 1996 (1) sec 639, held inapplicable.

6. The only material produced by defendant to show
H
618 SUPREME COURT REPORTS [2009] 10 S.C.R.

A that he was in possession from 1962, is the recital in the
sale deed dated 18.11.1985. As the sale deed dated
18.11.1985 is established to be a bogus and false
document, the claim of defendant that he was in
occupation of the suit site as a tenant from 1962, is liable
B to be rejected. [Para 19) [630-E-F]

7.1. The judgment in 0.5. No.578/1978 (Ex.P13) relied
upon by defendant and the evidence of PW2 and PW3
would clearly establish that the defendant was residing ..
C in the property of Muddukrishna (site No.9) adjoining the
suit property as a tenant, and that he had unauthorizedly
put up a' temporary cattle shed in the suit property in or
about the year 1978. This may at best prove adverse
possession of suit property by defendant from 1978. [para
23) [632-F-H]
D
7.2. The defendant has not produced any evidence J

to show that he was in possession of the suit property
for a period of 12 years prior to the filing of the suit by
plaintiff on 24.6.1987. Neither the correspondence
E between defendant and City Survey Department
subsequent to the suit nor the katha, sanction of plan and
tax receipts of the years 1991, 1992, and 2002 (all
subsequent to the suit), are of any relevance. The
defendant did not examine either Gowramma or any
F other neighbour to show that he was in continuous
possession of the suit property for more than 12 years.
Except his vague and interested statement which is
proved to be false, there is no evidence to show that he
was in possession for a period of 12 years prior to the
G suit of plaintiffs. [Para 24) [633-A-C]

7.3. When defendant claimed title and that was
proved to be false or fabricated, then the burden is heavy
upon him to prove actual, exclusive, open, uninterrupted
possession for 12 years. In this case he did not make out
H such possession for 12 years prior to the suit. While the
L. N. ASWATHAMA & ANR. v. P. PRAKASH 619

plaintiffs have made out a clear and absolute title of the A
property, the defendant has not been able to make out
title or adverse possession for more than 12 years. The
High Court did not examine any of these aspects and by
a cursory judgment, reversed the well considered
judgment of the trial court. Therefore the decision of High B
Court cannot be sustained. The judgment and decree of
the High Court is set aside and the judgment and decree
passed by the trial court is restored. [Paras 25 and 26]
[633-C-F]
Case Law Reference: c
1996 (1) sec 639 held inapplicable Para 16
1995 (6) sec 523 relied on Para 17
2004 (1) sec 211 relied on Para 17 o
2001 (6) sec 59 relied on Para 17
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
4125 of 2009.
E
From the Judgment & Order dated 12.09.2006 of the High
Court of Karnataka at Bangalore in RFA. No. 394 of 2004.

.
-.•
Rajesh Mahale for the Appellants .

Brijesh Kalappa and Divya Nair, N. Ganpathy for the F
Respondent.

The following Order of the Court was delivered:

ORDER
G
R. V. RAVEENDRAN, J. 1. Leave granted.
2. The appellants are the plaintiffs in a suit (OS No.2667/
1987 on the file of the City Civil Court, Bangalore) filed against
the respondent, for declaration of title, possession, permanent H
620 SUPREME COURT REPORTS [2009) 10 S.C.R.

A injunction and mesne profits in regard to site bearing no.19 (old
-A
site no.8), situated at 2nd Cross, Subedarpalya, Vyalikaval,
Bangalore, measuring 30' x 35'.

3. In brief, the case of the appellants - plaintiffs is as
follows: The suit property was purchased by one Hanumakka,
B
from the state government in the year 1940. She sold the said
site to one Bellary Muniswamy Pillai under a sale deed dated
23.9.1940, who in turn sold it to appellants' father
Narayanaswamappa under sale deed dated 21.4.1950. The
said Narayanaswamappa was registered as the owner of the
c said plot in the village records and was paying the taxes
therefor. Narayanaswamappa suffered a stroke and after a
prolonged illness died in December 1966 leaving all his
properties to his sons (plaintiffs) under his will dated 15.7.1956.
The plaintiffs were unaware that their father owned the said plot,
D as before and at the time of his death, they were prosecuting _,
their studies and were not conversant with their father's affairs.
Their father had taken some loan from Canara Bank and as
security therefor had mortgaged the said site and other
properties. The Bank obtained a decree for sale of the
E mortgaged properties. The plaintiffs became aware of the suit
property only after they cleared the loan due to the Bank and
got back the various title deeds deposited with the Bank on
9.1.1984. Thereafter, they took steps to trace the suit property
and collect the necessary papers and found that the defendant 1

F who had no right or title was in possession of the said property
by putting some temporary unauthorized structure for tethering
cattle. The appellants, therefore, filed the said suit.

4. The defendant-respondent resisted the suit by denying
the title of plaintiffs and claiming title to the suit property in
G himself. According to him, the said property belonged to one
Channabasavanna; that after his death, the said property
'\;
devolved upon his wife Gowramma; that ever since 1962, he
was tethering his cows in the suit property with the consent of
Channabasavanna and after the death of Channabasavanna
H
L. N. ASWATHAMA & ANR. v. P. PRAKASH 621
[R.V. RAVEENDRAN, J.]

_),·
continued as Gowramma's tenant; and that ultimately the said A
Gowramma sold the schedule property (measuring 25'x 40') to
-- ... him under a registered sale deed dated 18.11.1985. The
defendant also contended that as he was in continuous
undisturbea possession of the suit property for more than 30
years, he had perfected his title by adverse possession. To B
support his claim for possession, he relied on the decree for
permanent injunction obtained by him on 18.9.1979 in OS
No.578/1978, against the Bangalore City Corporation, when it
tried to disturb his possession in 1978. He contended that the
suit filed by the appellants was barred by limitation, as he had c
perfected his title by adverse possession .

.5. The trial court framed appropriate issues, relating to title
of plaintiffs, possession, adverse possession, limitation and the
reliefs sought. After appreciating the oral and documentary
D
"""!'·\.. evidence, the trial court, by a detailed judgment, decreed the
suit on 2.1.2004. It found that the plaintiffs had established their
title to the suit property and that the defendant neither
established his title, nor established adverse possession for
more than 12 years before the suit. Consequently, the trial court
declared that plaintiffs had title to the suit property and directed E
- the defendant to deliver up possession after removing his
materials. It also directed the defendant not to cause any
interference to plaintiffs' possession, after delivering
;, possession to plaintiffs.
F
6. The said judgment and decree passed by the trial court
was challenged by the defendant. A learned Single Judge of
. the Karnataka High Court by judgment dated 12.9.2006,
reversed the trial court's judgment and dismissed the suit. The
High Court, without much discussion, held that plaintiffs had G
failed to_prove that they had better titfe than the defendant and
,. -?" had also failed to prove that the suit property in the possession
of defendant was the property to which they claimed title as
having been purchased by their father under Ex.P2 dated
21.4.1950. The plaintiffs sought special leave of this Court, to
H
622 SUPREME COURT REPORTS [2009) 10 S.C.R.

A file an appeal against the said judgment. This court found the
judgment of the High Court was sketchy and cryptic, and ...
therefore issued limited notice to the respondent on 15.5.2007
to show cause why the matter should not be remanded to the .-
High Court for ''writing a proper judgment after considering the
B evidence on record." However, subsequently, both the parties
submitted that the remand will delay the ultimate decision and
requested this Court itself to consider the appeal on merits.
Accepting the said request, on 10.12.2007, this Court noted
that it will go into the merits of the matter also and for that
c purpose called for the records. We have heard the learned
counsel.

7. We find that the High Court did not formulate any points
for consideration, nor examine the relevant issues or evidence.
It reversed the well considered judgment of the trial court mainly
D on the ground that katha number of the suit property, given in
two of the documents relied by the plaintiffs did not tally. It "~
overlooked the fact that the trial court had recorded its findings
based on other evidence, by excluding the said two documents
from consideration. The High Court also ignored the explanation
E for the discrepancy, offered by the plaintiffs.

8. The first appellate court can re-appreciate evidence and
record findings different from those recorded by the trial court.
It is well settled that if the appraisal of evidence by the trial court .
*
F suffers from material irregularity, as for example when its
decision is based on mere conjectures and surmises, or when
its decision relies upon inadmissible evidence or ignores
material evidence or when it draws inferences and conclusions
which do not naturally or logically flow from the proved facts,
the appellate court is bound to interfere with the findings of the
G
trial court. It is equally well settled that where the trial court has
considered the entire evidence and recorded several material
findings, the first appellate court would not reverse them on the "! '

basis of conjectures and surmises or without analyzing the
relevant evidence in entirety. As the final court of facts, if the
H
L. N. ASWATHAMA & ANR. v. P. PRAKASH 623
[R.V. RAVEENDRAN, J.]
first appellate court is reversing the judgment of the trial court, A
it is bound to independently consider the entire evidence. The
High Court has ignored these well settled principles. In these
peculiar circumstances, we have to examine the correctness
of the findings recorded by the High Court.
B
9. On the contentions urged, the following questions arises
for consideration: (i) whether plaintiffs have established heir title
to the schedule property and entitlement to possession; (ii)
whether defendant has proved his title to the schedule property;
(iii) whether defendant has perfected his title by adverse C
possession and therefore the suit is barred by limitation.

Re : Question (i)
10. Plaintiff no.1, examined as PW1, stated that the suit
plot was allotted to Hanumakka, that she sold it to Bellary o
Muniswamy Pillai, who in turn, sold it to his father. The relevant
title documents were exhibited. Though the title/grant certificate
issued by the government in favour of Hanumakka was not
produced, the plaintiffs .produced the payment challan dated
13.3.1940 issued by Bangalore Taluk Treasury (marked as E
... Ex.P3) showing that Hanumakka had remitted Rs.16/6/6
towards the cost of a residential site purchased by her at
Subedarpalya, Vyalikaval, Bangalore, in the Treasury on
13.3.1940. Ex.P2 is the sale deed dated 5.9.1940 executed
by Hanumakka in favour of Bellary Muniswamy Pillai in regard
to the schedule plot wherein she recites that she had purchased
F
the said site no.8 measuring 30' x 35' in the sites laid out by
the government in Subedarpalya. Ex.P1 is the sale deed dated
21.4.1950 executed by Bellary Muniswamy Pillai conveying the
said plot to Narayanswammappa. Ex.P4 is the endorsement
issued by the Village Panchayat showing that G
Narayanaswamappa was the Kathedar of the suit property
(though it mentions only the khata number and not the site
number). Ex.P18 is the mortgage decree dated 3.2.1965
passed by the Principal Civil Judge, Bangalore city in O.S. No.
8/1965 filed by Canara Bank against Narayanaswamappa H
624 SUPREME COURT REPORTS [2009) 10 S.C.R.

A which shows the schedule property as one of the mortgaged
properties. Ex.P14 is the will under which Narayanaswamappa
bequeathed his properties to his two sons (plaintiffs). These
documents clearly make out the title of the plaintiffs to the
schedule property and also establish that plaintiffs' father had
·-
B exercised rights of ownership thereon by mortgaging the said
property in favour of Canara Bank.

11. The next question is whether plaintiffs have established
that site no.8 in regard to which they produced the documents
C of title and established the title, is the suit property in the
occupation of defendant. The case of the plaintiffs is that the
schedule property is situated in a small layout in Subedarpalya
formed by the government, shown in the sketch Ex.P15. The
defendant has admitted that the property adjoining the suit
property to the East, belonged to one Perumal. The plaintiffs
D have exhibited the sale deed dated 26.9.1955 under which said
Perumal purchased the adjoining site no.9 as also the sale
deed -dated 6.11.1978 under which Perumal sold it to K.
Muddukrishna, as Exs.P11 and P12. These documents (Ex.P11
and P12) show that plot no.9 in the layout formed by the
E government was purchased by one R. Sanniyappa Naidu in an
auction conducted by the government and he sold it to Perumal
...
under sale deed dated 26.9.1955 who in turn sold it to K.
Muddukrishna under deed dated 6.11.1978. The
'1
measurements of the said site no.9 are shown as 30 ft. x 35 ft.
F These documents also show that site No.8 (suit property)
belonging to Narayanaswamappa is situated to the west of the
said site no.9. The boundaries and measurements in Ex.P11
and P12 are in consonance with the boundaries of suit property
in the title deeds of plaintiffs (Ex.P1 and P2) and the
G boundaries and measurements in the plan produced by the
plaintiff as per Ex.P15. The plaintiffs have thus established the
identity of the suit property with reference to the sketch (Ex.P15)
and the sale deeds (Ex.P11 dated 26.9.1955 and Ex.P12
dated 6.11.1978) relating to the plot no. 9 adjacent to the suit
H property, situated to the east of the suit property. We find that
L. N. ASWATHAMA & ANR. v. P. PRAKASH 625
[R.V. RAVEENDRAN, J.]
.k
the trial court has also by detailed reference to the documents A
"·~ and boundaries identified the property purchased by
Narayanaswammppa under Ex.P1 dated 21.4.1950 as the suit
property in the wrongful possession of the defendant.

12. The High Court has neither discussed the evidence B
relating to identity of the suit property nor held that the trial
court's finding that plaintiffs have established their title and
identity of the suit property was erroneous. The High Court has
rejected the entire case of the plaintiffs merely on the ground
that'in the mortgage suit of the Bank, the Katha number of the
property is wrongly given. The plaintiffs have offered a simple
c
and acceptable explanation by pointing out that in Ex.P17 and
P18 (preliminary and final decree in the mortgage suit of the
Bank), the katha numbers of items (3) and (4) of the schedule
,., had been interchanged. Item (4) is site no.8 and the katha
number has been mentioned as 95 instead of 53. For item (3), D
Katha number is mentioned as 53 instead of 95. The correct
katha number is 53 as is evident from Ex.P4 and P5 issued
by the village punchayat.

13. In law, possession follows title. The plaintiffs having E
established title to the suit property, will be entitled to decree
for possession, unless their right to the suit property was
.,,~
extinguished, by reason of defendant being in adverse
possession for a period of twelve years prior to the suit.
F
Re: Question Iii)

14. The defendant has claimed title to the suit property.
He, however, contends that the suit property in his occupation
bears the site no.18A and measures 25' x 40' and that the said
plot was sold to him by Gowramma on 18.11.1985. The G
-( defendant contends that the suit property earlier belonged to
,
Gowramma's husband Channabasavanna and on his death,
Gowramma became the owner thereof; and that he had taken
the said property on rent from in or about the year 1962 and
paying rents to Gowramma, till he purchased it from her on H
626 SUPREME COURT REPORTS [2009] 10 S.C.R.

A 18.11.1985. Defendant has not produced any document to show
the title of Gowramma or her husband, though the sale deed
dated 18.11.1985 refers to the earlier title deeds. The defendant
merely stated that the sale deed dated 18. 11.1985 recited
about the previous title. The sale deed dated 18.11.1985 (a
B certified copy which is produced as Ex.D1) said to have been
executed by Gowramma, no doubt purports to convey site
No.18A measuring 25' x 40' to the defendant. The said sale
deed recites that the vendor Gowramma was appointed as
guardian of her husband Channabasavanna who was a lunatic;
c that he had purchased the property, of which what was being
sold by her to defendant, was a part, under registered sale deed
dated 28.8.1959 (registered as Document No.4725, Book I,
Vol.1821, pages 200-204, in the office of the Sub-Registrar,
Bangalore North Taluk), and that by virtue of an order (certified
D copy of which was dated 20.10.1964) made in Misc.C. No.444/
1964 by the II Addi. District Judge, Bangalore. she became the
owner of the suit property. The defendant, as noticed above,
significantly did not produce the previous title deed dated
28.8.1959 or the said order of the District court in Misc.
C.No.444/1964.
E
15. The plaintiffs have produced and marked as Ex. P21
and Ex.P22, certified copies of the petition and order in Misc.
C.No.444/1964, filed by Gowramma praying for grant of letters ''
of administration. They show that Gowramma sought letters of
F administration in regard to two properties left by her husband
and that by order dated 19.10.1964 the court granted such relief.
The two properties were (i) premises no.9, Fifth cross,
Malleswaram, Bangalore (earlier site no.8, in Sy. No.9 of
Kayamgutta Ranganathapura, Kasaba Hobli, Bangalore North
G Taluk) and (ii) Premises no.17, Subedarpalya Vyalikaval,
Bangalore North Taluk measuring 30' x 35' bounded on the East
by site no.16, belonging to Nanjappa Reddy; West by site no.18,
belonging to Raghunath Singh, North and South by Government
road. Admittedly neither of them is the suit property. The first is
H in Malleswaram. The second is of course in Subedarpalya.
L. N. ASWATHAMA & ANR. v. P. PRAKASH 627
[R.V. RAVEENDRAN, J.]
• What Gowramma inherited from her husband and situated in A
Subedarpalya ·was thus site no.17, measuring 30' x 35' which
was situated three sites away on the south of suit site no.8 as
is evident from E,x.P15. Defendant did not produce the previous
sale deed dated 28.8.1959, as it would apparently show that
Gowramma was not the owner of suit property (site No.8), but B
some other property in the same area, that is plot no.17. Thus
Gowramma did not inherit site no.8 (corresponding to municipal
no.19 and subsequently referred to as no.18/1) of
Subedarpalya, Vyalikaval which is the suit property from her
husband, nor did she secure letters of administra~ion in regard c
to the said site. If Gowramma purported to sell a portion of what
was acquired by her under deed dated 28.8.1959 and the order
in Misc.C.444/1964, than it would mean that what was sold to
defendant was a portion of site No.17 measuring 25' x 40' and
~ ._. not the suit property. Thus Ex.01 dated 18.11.1985produced
D
by the defendant does not relate to suit property (site no.8).
Merely by changing the site number as 18/A, and securing a
sale deed from Gowramma, defendant cannot claim title to suit
property, as Gowramma never owned the suit property. It is
also of some interest to note that the sale deed dated
18.11.1985 recites that Gowramma had already sold portions E
of the plot (acquired under deed dated 28.8.1959 and order in
Misc.C No.444/1964) to others. If so, it is doubtful anything
,,,.'
remained in site no.17 for sale. But it is unnecessary to
. examine that aspect as we are not concerned with site no.17
at all in this case. The sale deed dated 18.11.1985 alleged to F
have been executed by Gowramma (Ex.01 is a certified copy)
was clearly a fabricated document in regard to an non-existing
site obviously with the intention of laying claim over the suit
property. The said deed did not convey any right, title or interest
to the defendant in respect of the suit property. G
(
Re : Question (iii)

16. The plaintiffs· contended that the plea of adverse
possession put forth by the defendant should fail in view of the
H
628 SUPREME COURT REPORTS [2009] 10 S.C.R.

A inconsistent stands taken by the defendant. It is pointed out that ..
the defendant had specifically contended that he was the tenant
of the schedule property from 1962 until he purchased the
property on 18.11.1985. According to plaintiffs, this was a case
of permissive possession and not adverse possession. It is
B submitted that the defendant having put forth a case of
permissive possession, cannot put forth a plea of adverse
possession. It was submitted that even assuming that there was
a long and continuous possession for more than 12 years, that
by itself would not constitute adverse possession if it was either
c permissive possession or possession without animus
possidendi. According to them, the two pleas being mutually
inconsistent, the latter plea could not even begin to operate until
the former was renounced. Reliance was placed to the following
observations of this Court in Mohan Lal (Dead through LRs)
D vs. Mirza Abdul Gaffar - 1996 (1) SCC 639, made while -;
considering a case where the defendant raised the pleas of
permissive possession and adverse possession :

"As regards the first plea, it is inconsistent with the second
plea. Having come into possession under the (sale)
E agreement, he must disclaim his right thereunder and
plead and prove assertion of his independent hostile
adverse possession to the knowledge of the transferor or
.•
his successor in title or interest and that the latter had '
acquiesced to his illegal possession during the entire
F period of 12 years, i.e., up to completing the period his
title by prescription nee vi, nee clam, nee precario (not by
violence, not by stealth, not by permission). Since the
appellant's claim is founded on section 53A (of Transfer
of Property Act, 1882), it goes without saying that he
G admits by implication that he came into possession of land
lawfully under the agreement and continued to remain in 'x
possession till date of the suit. Thereby the plea of
adverse possession is not available to the appellant."

[emphasis supplied]
H
L. N. ASWATHAMA & ANR. v. P. PRAKASH 629
[RV RAVEENDRAN, J.]
17 The legal position is no doubt well settled. To establish A
a claim of title by prescription, that is adverse possession for
12 years or more, the possession of the claimant must be
physical/actual. exclusive, open, uninterrupted, notorious and
hostile to the true owner for a period exceeding twelve years.
It is also well settled that long and continuous possession by B
itself would not constitute adverse possession if it was either
permissive possession or possession without animus
possidendi. The pleas based on title and adverse possession
are mutually inconsistent and the latter does not begin to
operate until the former is renounced. Unless the person c
possessing the property has the requisite animus to possess
the property hostile to the title of the true owner, the period for
prescription will not commence. (Vide : Periasami vs. P.
Periathambi - 1995 (6) SCC 523, Md. Mohammad Ali (dead)
by LRs. vs. Jagdish Kafita - 2004 (1) SCC 271 and P. T. D
"", ~ Munichikkanna Reddy vs. Revamma - 2007 (6) SCC 59).

18. We are however of the view that the decision in Mohan
Lal (supra) relied on by the plaintiffs is inapplicable, as the
defendant therein had pleaded that he was in possession,
having obtained possession in part performance of a sale E
agreement. As the defendant therein admitted that he came
into possession lawfully under an agreement of sale and
continued to remain in such possession, there was no adverse
.
~· possession. This case is different, as the defendant did not
contend that he entered possession under or through the F
plaintiffs. His case was that he was in possession as a, tenant
under Gowramma from 1962 and he became the owner by
purchasing the plot from Gowramma in 1985. He alternatively
contended that if Gowramma did not have title and
consequently his claim based on title was rejected, then having· G
regard to the fact that he had been in possession by setting
~i
up title in Gowramma and later in himself, his possession was
hostile to the true owner; and if he was able to make out such
"
hostile possession continued for more thpn 12 years, he could
claim to have perfected his title by adverse possession. There H
630 SUPREME COURT REPORTS (2009] 10 S.C.R.

A is considerable force in the contention of defendant provided
he is able to establish adverse possession for more than 12
...
years. When a person is in possession asserting to be the
owner, even if he fails to establish his title, his possession
would still be adverse to the true owner. Therefore, the two
8 pleas put forth by the defendant in this case are not inconsistent
pleas but alternative pleas available on the same facts.
Therefore, the contention of the plaintiffs that the plea of adverse
possession is not available to defendant is rejected.

19. But then the question is if the defendant did not make
c out his title, whether adverse possession of defendant for a
period of more than 12 years prior to the suit has been
established? The specific case of defendant was that he was
the tenant of Gowramma in regard to the schedule property
(vacant site) from the year 1962, initially on a monthly rent of
D Rs.30 which was later increased to Rs.40/- and again to Rs.
" ,,..
601- and that he continued as such tenant till 18.11.1985 when
he purchased the suit property from Gowramma. We have
already held that Gowramma did not own the suit property, but
apparently owned a property three or four sites away from suit
E property. We have also held that no title was conveyed to
defendant under the deed dated 18.11.1985. The only material
produced by defendant to show that he was in possession from
1962, is the recital in the sale deed dated 18.11.1985. As the
·._,
sale deed dated 18.11.1985 is established to be a bogus and
F false document, the claim of defendant that he was in occupation
of the suit site as a tenant from 1962, is liable to be rejected.

20. The only other evidence produced by defendant to
prove his possession is the judgment dated 18.9.1979 in the
suit filed by him against the Corporation of City of Banga 1ore
G
in the year 1978, when it proposed to take action against him
for unauthorized construction in the schedule site. Here again, .)
the defendant did not produce either the plaint or the judgment.
The plaintiffs produced and marked the judgment as Ex.P13.
The said judgment shows that the defendant did not claim that
H
L. N. ASWATHAMA & ANR. v. P. PRAKASH 631
[R.V. RAVEENDRAN, J.]
the property belonged to Gowramma or that he was the tenant A
.x
of Gowramma in the said site. On the other hand, he merely
alleged that he was in possession of plot No. 18A. The
Bangalore City Corporation denied his ownership and
possession and contended that he had no right, title, or interest
in the suit property and pointed out that he had carefully avoided 8
any reference to the source of his title or payment of property
taxes in regard to suit property and that there was no allegation
~)(
that the katha stood in his name. It also specifically contended
that defendant was living in the adjoining premises as tenant
and that he had recently constructed a cow-shed unauthorisedly c
in the suit property with bamboos, zine sheets and thatched
leaves. The court by its judgment dated 18.9.1979 held that ·
defendant herein was not the owner of the property. It also held
that he had not perfected his title by adverse possession. But

-" as defendant herein was found to be in possession of the plot,
the cburt granted an injunction against the Bangalore City
Corporation, on the ground that even a trespasser was entitled
to protect his possession. The description given by defendant
D

in regard to suit property is of some interest and is extracted
below: "Property adjoining site No.18 (numbered as 18/A for
the sake of convenience) situated in First Street, Subedarpalya, E
Yeshwanthpur, Bangalore 22, measuring 35 feet by 25 feet
bounded on the East by first street, west by House of Victor
• Julius, North by House of Hanumappa, and south by House
-~'
Venkatappa."
F
21. Plaintiffs examined Victor Julius, (who is described by
defendant as the western neighbour in the said injunction suit)
as PW2. He stated that he is the husband of Suwarna who
owns site no.14 situated to the South of site no.8 divided by a
conservancy lane. He stated that the defendant was a tenant G
under one Muddukrishna in a portion of one of the three houses
.t' situated in the adjoining site no.9 known as Perumal's
compound. He has further stated that about 10 years prior to
the date of his evidence (19.9.2002), the defendant put a house
H
632 SUPREME COURT REPORTS [2009] 10 S.C.R.

A in the back portion of site no.8. This clearly shows that the
defendant mixed up the description cf two properties to create
an imaginary property. The description in the injunction suit
shows that there was no site bearing the number '18A' and that
number was given by defendant only for convenience. It also
B describes the plot as plot next to plot 18. Plot next to plot No.18,
would refer to plot 17 belonging to Gowramma and not plot
No.8 which is the suit property. It is also evident from the
evidence of Victor Julius that plot No.8 (suit property) was to
the North of his property with a conservancy road separating
c the two properties. The schedule in the injunction suit filed by
defendant against Corporation of City of Bangalore does not
fit the suit property at all.

22. Plaintiffs also examined one Muniappa as PW3 who
states that he has been staying in the house opposite to site
D no.8 (on the Northern side) since 1950 and that one Perumal
was the owner of the adjoining site no.9 wherein he had
constructed three small houses; that Perumal had sold the
property no.9 to Muddukrishna; and that defendant was staying
in one of the houses no.9 as a tenant of Muddukrishna. He also
E stated that the defendant put up a small shed in a part of site
no.8 which was lying vacant, to tether his cows and
subsequently, in the year 1992 (during the pendency of the suit)
constructed a house in site no.8. He has also stated that
Gowramma was earlier living in the same locality four houses
.
\·

F away.

23. The judgment in 0.S. No.578/1978 (Ex.P13) relied
upon by defendant and the evidence of PW2 and PW3 would
clearly establish that the defendant was residing in the property
G of Muddukrishna (site No.9) adjoining the suit property as a
tenant, and that he had unauthorizedly put up a temporary cattle
shed in the suit property in or about the year 1978. This may
at best prove adverse possession of suit property by defendant
from 1978.

H
L. N. ASWATHAMA & ANR. v. P. PRAKASH 633
[R.V. RAVEENDRAN, J.]

24. The defendant has not produced any evidence to show A
that he was in possession of the suit property for a period of
12 years prior to the filing of the suit by plaintiff on 24.6.1987.
Neither the correspondence between defendant and City
Survey Department subsequent to the suit nor the katha,
sanction of plan and tax receipts of the years 1991, 1992, and B
2002 (all subsequent to the suit), are of any relevance. The
defendant did not examine either Gowramma or any other
neighbour to show that he was in continuous possession of the
suit property for more than 12 years. Except his vague and
interested ~statement which is proved to be false, there is no c
evidence to show that he was in possession for a period of 12
years prior to the suit of plaintiffs.

25. When defendant claimed title and that was proved to
be false or fabricated, then the burden is heavy upon him to
prove actual, exclusive, open, uninterrupted possession for 12 D
years. In this case we have already held that he did not make
out such possession for 12 years prior to the suit. While the
plaintiffs have made out a clear and absolute title of the
property, the defendant has not been able to make out title or
adverse possession for more than 12 years. The High Court E
did not examine any of these aspects and by a cursory
judgment, reversed the well considered judgment of the trial
court. Therefore the decision of High Court cannot be sustained.

26. We therefore allow this appeal with costs, set aside F
the judgment and decree of the High Court and restore the
judgment and decree passed by the trial court.

G.N. Appeal allowed.