MALLIKARJUNAIAHversusNANJAIAH & ORS.

                         [2019] 6 S.C.R. 1073                              1073


                       MALLIKARJUNAIAH                                     A
                                   v.
                        NANJAIAH & ORS.
                    (Civil Appeal No.7768 of 2011)
                           APRIL 26, 2019                                  B
               [ABHAY MANOHAR SAPRE AND
                 DINESH MAHESHWARI, JJ.]
       Suit – Declaration of title – According to the appellant-
plaintiff, the suit land fell to his share after the death of his father
                                                                           C
by a partition amongst his brothers – In 1983, appellant noticed
that the suit land i.e. 1 Gunta in Sy. No. 17/3 was encroached upon
by the respondents-defendants – In 1992, appellant filed suit against
the respondents for declaration of his ownership over the entire
land including the suit land – Trial court and the First Appellate
Court held that respondents had perfected their title by adverse           D
possession – In the second appeal, the High Court declared
respondents to be the owner of the suit land by virtue of their adverse
possession – On appeal, held: Respondents had admitted the
ownership of the appellant over the entire land including the suit
land by setting up the plea of adverse possession over it –
                                                                           E
Respondents failed to prove their adverse possession as there was
no element of either adversity or/and hostility between two co-
owners/brothers because in a dispute of this nature where both the
parties are related, possession of one is regarded as possession of
other unless the facts show otherwise – Also, there was no
knowledge of actual measurements of the suit land prior to the year        F
1983 – Plea of adverse possession was also not available to the
respondents as suit was filed well within 12 years from the date of
knowledge of adverse possession and 12 years had not completed
by then – The Courts below were not justified in declaring the
respondents to be the owner of the encroached portion of the suit
                                                                           G
land by virtue of adverse possession – Judgment of the High Court
set aside – Thus, appellant-plaintiff ’s suit decreed in its entirety
against the respondents-defendants – Respondents to vacate the
encroached portion (1 Gunta in Sy.No. 17/3) and hand over its
possession to the appellant.
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                                   1073
1074            SUPREME COURT REPORTS                       [2019] 6 S.C.R.


 A           Allowing the appeal, the Court
              HELD: 1. Keeping in view the law relating to the adverse
       possession, when the facts of the instant case are examined, there
       is no hesitation in holding that the Courts below were not justified
       in holding that the defendants have perfected their title over the
 B     suit land qua the plaintiff by virtue of their adverse possession
       over the suit land. This is said for the following reasons.
       [Para 21][1079-C-D]
             2. First, it is not in dispute that the appellant(plaintiff) was
       the owner of the entire land including the suit land, i.e., encroached
 C     portion, which was alleged to be in possession of the
       respondents(defendants).            In      other     words,       the
       respondents(defendants) have admitted the ownership of the
       appellant(plaintiff) over the entire land including the suit land by
       setting up the plea of adverse possession over it; Second, the
       burden to prove the adverse possession was on the
 D     respondents(defendants) because it was they who had set up this
       plea; Third, the respondents(defendants), failed to discharge this
       burden; Fourth, there was no element of either adversity or/and
       hostility between two co-owners/brothers because in a dispute
       of this nature where both the parties are related to each other,
 E     the possession of one is regarded to be the possession of other
       unless     the      facts     show      otherwise;       Fifth,    the
       respondents(defendants) failed to adduce any evidence to prove
       that they were asserting their right of ownership over the entire
       land or the suit land or its part openly and to the knowledge of
       the appellant(plaintiff) continuously for a period of more than 12
 F     years; Sixth, it is a settled principle of law that mere continuous
       possession howsoever long it may have been qua its true owner
       is not enough to sustain the plea of adverse possession unless it
       is further proved that such possession was open, hostile,
       exclusive and with the assertion of ownership right over the
 G     property to the knowledge of its true owner. Such is not the case
       here. Seventh, this was a case where both the parties were not
       aware as to how much land was in exclusive possession of each.
       In other words, here is a case where both the parties to the suit


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         MALLIKARJUNAIAH v. NANJAIAH & ORS.                             1075


did not know as to how much land was in the exclusive possession        A
of the appellant (plaintiff) and how much land was in possession
of the respondents(defendants). It was only when the
appellant(plaintiff) got the suit land measured through the revenue
department in the year 1983, he came to know that some portion
of the land, which had fallen to his share was in possession of the
                                                                        B
respondents(defendants). [Para 22][1079-E-H; 1080-A-C]
      3. The appellant(plaintiff) having come to know that the
respondents(defendants) had encroached upon his land in the
year 1983 and he rightly filed the suit within 12 years from the
date of knowledge, a plea of adverse possession was not available
to the respondents(defendants) against the appellant(plaintiff)         C
because 12 years had not been completed by then. In this view of
the matter, the question of respondents(defendants) perfecting
their title by adverse possession over the suit land did not arise.
As mentioned, even if the respondents(defendants) claimed to
be in possession over the suit land prior to the year 1983, the         D
same was of no consequence for the simple reason that such
possession was neither exclusive nor hostile and nor it was to
the knowledge of the parties for want of actual measurements.
[Paras 24, 25][1080-E-G]
      4. It is for all these reasons, this Court is of the considered   E
view that the Courts below were not justified in declaring the
respondents(defendants) to be the owner of the encroached
portion of the suit land by virtue of adverse possession. This
finding being against the settled principle of law deserves to be
set aside. [Para 26][1080-H; 1082-A]
                                                                        F
      T. Anjanappa & Ors. v. Somalingappa & Anr.
      (2006) 7 SCC 570 : [2006] 5 Suppl. SCR 200 ; Chatti
      Konati Rao & Ors. v. Palle Venkata Subba Rao, (2010)
      14 SCC 316 : [2010] 15 SCR 923 – relied on.
                       Case Law Reference                               G
      [2006] 5 Suppl. SCR 200      relied on           Para 19
      [2010] 15 SCR 923             relied on          Para 19


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1076             SUPREME COURT REPORTS                           [2019] 6 S.C.R.


 A           CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7768
       of 2011
            From the Judgment and Order dated 14.11.2007 of the High Court
       of Karnataka at Bangalore in RSA No. 23 of 2005.
             Rajesh Mahale, Krutin R. Joshi, Advs. for the Appellant.
 B
             The Judgment of the Court was delivered by
             ABHAY MANOHAR SAPRE, J.
              1. This appeal is directed against the final judgment and order
       dated 14.11.2007 passed by the High Court of Karnataka at Bangalore
 C     in RSA No. 23 of 2005 whereby the High Court partly allowed the appeal
       filed by the appellant herein.
             2. A few facts need mention hereinbelow for the disposal of this
       appeal.
             3. The appellant is the plaintiff and the respondents are the
 D
       defendants of the civil suit out of which this appeal arises.
              4. The civil suit leading to this appeal was filed by the
       appellant(plaintiff) seeking declaration of his title in relation to the
       properties described in Schedule ‘A’ attached to the plaint, being the
       land admeasuring 20 Guntas in Sy. No.17/3; western portion of 32 ½
 E     Guntas in Sy.No.29/1; and 11 Guntas in Sy. No.34/3, all situated at
       Karagund Village, Javagal Hobli, Arasikere Taluk, Hassan District,
       Karnataka. Out of the aforesaid land, 1 Gunta of land in Sy. No.17/3
       and a portion of Sy. No.29/1 were mentioned in Schedule ‘B’ to the
       plaint and perpetual injunction was sought in that regard.
 F           5. The other particulars of the property described in the plaint
       need not be elaborated for the reason that now the dispute in these
       proceedings is confined to the part of the aforementioned land
       admeasuring 1 Gunta in Sy. No.17/3 (hereinafter referred to as “the suit
       land”).
 G             6. According to the appellant (plaintiff), the entire land mentioned
       above, which also included the suit land, fell to his share in the year 1980
       after the death of his father by a partition amongst his brothers. However,
       in 1983, the appellant noticed that the suit land, i.e., 1 Gunta in Sy. No.
       17/3, was encroached upon by the defendants.
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          MALLIKARJUNAIAH v. NANJAIAH & ORS.                                     1077
              [ABHAY MANOHAR SAPRE, J.]

       7. The appellant, therefore, made an application to the survey            A
department to get the land measured. On measurement, it was noticed
that the defendants had encroached upon the portion of the appellant’s
share to the extent of 1 Gunta of Sy. No. 17/3.
      8. The matter was accordingly resolved with the intervention of
local Panchayat and pursuant thereto, the defendants restored the                B
possession of the encroached portion of the suit land to the appellant.
       9. Thereafter the appellant filed a civil suit in the year 1992 against
the respondents for declaration of his ownership right over the entire
land including the suit land and for grant of permanent injunction in relation
to the suit land. In the alternative, the appellant also sought the relief of    C
possession of the suit land in case, he is held to be not in possession of
the suit land.
       10. The respondents, in substance, defended their possession over
the suit land and alleged that they have perfected their ownership title
over the suit land on the basis of their adverse possession over the suit        D
land for a long period of time.
       11. The Trial Court, while partly decreeing the suit, by judgment
and decree dated 14.01.1999, declared the appellant(plaintiff) as the
owner of larger part of Schedule ‘A’ property but observed that the
defendants had perfected their title by adverse possession over 1 Gunta          E
of land in Sy. No.17/3 and, therefore, the prayer seeking permanent
injunction against the defendants as regards Schedule ‘B’ property was
rejected.
       12. The appellant (plaintiff) felt aggrieved and filed first appeal
before the first Appellate Court. The respondents (defendants) filed their       F
cross objections. By order dated 10.09.2004 in R.A. No.11 of 1999, the
first Appellate Court, in substance, upheld all the findings of the Trial
Court but modified the decree to some extent regarding the measurement
of the suit land.
       13. The appellant (plaintiff) felt aggrieved and filed second appeal
                                                                                 G
in the High Court of Karnataka. By impugned judgment, the High Court
partly allowed the appeal and declared the appellant (plaintiff) to be the
owner in respect of the land admeasuring 19 Guntas in Sy. No. 17/3 and
11 Guntas in Sy. No. 34/3 but dismissed his claim as being the owner of
the suit land admeasuring 1 Gunta in Sy. No. 17/3 and instead declared
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1078             SUPREME COURT REPORTS                             [2019] 6 S.C.R.


 A     the defendants to be its owner by virtue of their adverse possession over
       the suit land.
              14. It is against this order of the High Court, the appellant(plaintiff)
       has felt aggrieved and filed the present appeal by way of special leave in
       this Court
 B            15. So, the short question, which arises for consideration in this
       appeal, is whether the High Court was justified in holding that the
       defendants (respondents) have become the owner of the suit land to the
       extent of 1 Gunta in Sy. No. 17/3 by virtue of their adverse possession
       over it.
 C           16. Heard Mr. Rajesh Mahale, learned counsel for the appellant.
       Despite notice, no one entered appearance on behalf of the respondents.
              17. Having heard the learned counsel for the appellant and on
       perusal of the record of the case, we are constrained to allow this appeal
       and set aside the impugned judgment to the extent it declares the
 D     defendants (respondents) as being the owner of the suit land admeasuring
       1 Gunta in Sy. No. 17/3 and, in consequence, decreeing the plaintiff’s
       suit in relation to the suit land against the defendants.
              18. What is “adverse possession” and on whom the burden of
       proof lies and what should be the approach of the Courts while dealing
 E     with such plea have been the subject-matter of a large number of cases
       of this Court.
              19. In T. Anjanappa & Ors. vs. Somalingappa & Anr., (2006)
       7 SCC 570, this Court held that mere possession, howsoever long it may
       be, does not necessarily mean that it is adverse to the true owner and
 F     the classical requirement of acquisition of title by adverse possession is
       that such possessions are in denial of the true owners’ title.
             20. Relying upon the aforesaid decision, this Court again in Chatti
       Konati Rao & Ors. vs. Palle Venkata Subba Rao, (2010) 14 SCC
       316 in para 14 held as under:
 G            “14. In view of the several authorities of this Court, few
              whereof have been referred above, what can safely be said
              is that mere possession however long does not necessarily
              mean that it is adverse to the true owner. It means hostile
              possession which is expressly or impliedly in denial of the
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          MALLIKARJUNAIAH v. NANJAIAH & ORS.                                    1079
              [ABHAY MANOHAR SAPRE, J.]

      title of the true owner and in order to constitute adverse                A
      possession the possession must be adequate in continuity,
      in publicity and in extent so as to show that it is adverse to
      the true owner. The possession must be open and hostile
      enough so that it is known by the parties interested in the
      property. The plaintiff is bound to prove his title as also
                                                                                B
      possession within twelve years and once the plaintiff proves
      his title, the burden shifts on the defendant to establish
      that he has perfected his title by adverse possession. Claim
      by adverse possession has two basic elements i.e. the
      possession of the defendant should be adverse to the
      plaintiff and the defendant must continue to remain in                    C
      possession for a period of twelve years thereafter.”
        21. Keeping in view the law relating to the adverse possession
quoted above, when we examine the case at hand, we have no hesitation
in holding that the Courts below were not justified in holding that the
defendants have perfected their title over the suit land qua the plaintiff      D
by virtue of their adverse possession over the suit land. This we say for
the following reasons.
        22. First, it is not in dispute that the appellant(plaintiff) was the
owner of the entire land including the suit land, i.e., encroached portion,
which was alleged to be in possession of the respondents(defendants).           E
In other words, the respondents(defendants) have admitted the ownership
of the appellant(plaintiff) over the entire land including the suit land by
setting up the plea of adverse possession over it; Second, the burden to
prove the adverse possession was on the respondents(defendants)
because it was they who had set up this plea; Third, the
respondents(defendants), in our view, failed to discharge this burden;          F
Fourth, there was no element of either adversity or/and hostility between
two co-owners/brothers because in a dispute of this nature where both
the parties are related to each other, the possession of one is regarded to
be the possession of other unless the facts show otherwise; Fifth, the
respondents(defendants) failed to adduce any evidence to prove that             G
they were asserting their right of ownership over the entire land or the
suit land or its part openly and to the knowledge of the appellant(plaintiff)
continuously for a period of more than 12 years; Sixth, it is a settled
principle of law that mere continuous possession howsoever long it may
have been qua its true owner is not enough to sustain the plea of adverse
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1080             SUPREME COURT REPORTS                           [2019] 6 S.C.R.


 A     possession unless it is further proved that such possession was open,
       hostile, exclusive and with the assertion of ownership right over the
       property to the knowledge of its true owner. Such is not the case here.
       Seventh, this was a case where both the parties were not aware as to
       how much land was in exclusive possession of each. In other words,
       here is a case where both the parties to the suit did not know as to how
 B
       much land was in the exclusive possession of the appellant (plaintiff)
       and how much land was in possession of the respondents(defendants).
       It was only when the appellant(plaintiff) got the suit land measured through
       the revenue department in the year 1983, he came to know that some
       portion of the land, which had fallen to his share was in possession of the
 C     respondents(defendants).
              23. Thereafter the appellant(plaintiff) filed a suit in the year 1992
       against the respondents(defendants) for declaration and injunction and
       in the alternative also claimed possession of the suit land. The suit was,
       therefore, filed well within the period of 12 years from the date of
 D     knowledge, i.e., in the year 1983. During this period also, there was no
       evidence adduced by the defendants to prove that they ever asserted
       their right of ownership over the specific portion of the suit land as
       belonging to them openly and with assertion of hostility to the knowledge
       of appellant(plaintiff).
 E            24. In our view, the appellant(plaintiff) having come to know that
       the respondents(defendants) had encroached upon his land in the year
       1983 and he rightly filed the suit within 12 years from the date of
       knowledge, a plea of adverse possession was not available to the
       respondents(defendants) against the appellant(plaintiff) because 12 years
       had not been completed by then.
 F
              25.In this view of the matter, the question of
       respondents(defendants) perfecting their title by adverse possession over
       the suit land did not arise. As mentioned above, even if the
       respondents(defendants) claimed to be in possession over the suit land
       prior to the year 1983, the same was of no consequence for the simple
 G     reason that such possession was neither exclusive nor hostile and nor it
       was to the knowledge of the parties for want of actual measurements.
             26. It is for all these reasons, we are of the considered view that
       the Courts below were not justified in declaring the
       respondents(defendants) to be the owner of the encroached portion of
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             MALLIKARJUNAIAH v. NANJAIAH & ORS.                               1081
                 [ABHAY MANOHAR SAPRE, J.]

the suit land by virtue of adverse possession. This finding, in our view,     A
being against the settled principle of law deserves to be set aside.
       27. In view of the foregoing discussion, the appeal succeeds and
is accordingly allowed. The impugned judgment is set aside. As a
consequence thereof, the plaintiff’s (appellant’s) suit is decreed in its
entirety against the defendants The defendants(respondents) are granted       B
three months’ time to vacate the encroached portion (1 Gunta in Sy. No.
17/3) and hand over its possession to the appellant/plaintiff.


Ankit Gyan                                                  Appeal allowed.
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