Case: KRISHNAMURTHY S. SETLUR (DEAD) BY LRS Vs. O.V.NARASIMHA SETTY(DEAD) BY LRS

KS was not the true owner of the property.14. In our considered view, the High Court has not given any cogent reasons for coming to the conclusion that KS was not in possession of the property. His name figured in the revenue record from 1963 to 1981 as the owner in possession. Presumption of truth is attached to revenue record which has not been rebutted. The High Court has held, and rightly so, that in the proceedings decided in favour of KS, HR or his legal representatives were not made parties. However, the High Court lost sight of the fact that in the proceedings filed by AR, KS was not impleaded as a party though his name was shown in the revenue record. It is obvious that both sides had tried to obtain orders behind each other?s back. Reliance cannot be placed on either of the documents in which all the parties were not duly represented. The net result is that KS is not the owner of the property, but it is equally true that from 1963, he had been shown to be in possession pursuant to the application (Exhibit P-10) and the order (Exhibit P¬11) of the Tehsildar. This possession was adverse to the true owner. It was openly hostile to the claim of HR and his legal representatives and they never filed a suit for possession of the property. Once it is held that KS was in possession of the suit property, the consequence will be that he is in adverse possession. The legal representatives of HR have failed to show- how they obtained possession from HR. Even, according to the case of HR, it was AR who was in possession as a tenant. AR surrendered part of the land to KS and not to HR. No doubt, in later proceedings in which KS was not a party, AR made a statement that he was never a tenant in the suit, but such statement flies in the face of the pleadings of AR in O.S. No.79 of 1949 filed by HR and the decisions in those proceedings. Furthermore, AR had executed a registered sale¬ cum-release deed jointly with KS and this was ratified by the Tehsildar.15. In view of the aforesaid facts, it is apparent that the legal heirs of HR miserably failed to prove how they came into possession of the suit property. Therefore, we are clearly of the view that the High Court gravely erred in coming to the conclusion that KS was not in possession of the suit property when the suit was filed. He may have been dispossessed after filing of the suit but that has no effect on the case.16. In a reference made to a larger Bench of this Court in this case as well as in other connected matters in the case of Ravinder Kaur Grewal & Ors. v. Manjit Kaur & Ors. Civil Appeal No.7764 of 2014, decision dated 07.08.2019Civil Appeal No.7764 of 2014, decision dated 07.08.2019Civil Appeal No.7764 of 2014, decision dated 07.08.2019Civil Appeal No.7764 of 2014, decision dated 07.08.2019 , the larger Bench had held that the plea of adverse possession can be used both as an offence and as a defence i.e. both as sword and as a shield. Relevant portion of the judgment reads as follows:¬?59. We hold that a person in possession cannot be ousted by another person except by due procedure of law and once 12 years period of adverse possession is over, even owners right to eject him is lost and the possessory owner acquires right, title and interest possessed by the outgoing person/owner as the case may be against whom he has prescribed. In our opinion, consequence is that once the right, title or interest is acquired it can be used as a sword by the plaintiff as well as a shield by the defendant within ken of Article 65 of the Act and any person who has perfected title by way of adverse possession, can file a suit for restoration of possession in case of dispossession. In case of dispossession by another person by taking law in his hand a possessory suit can be maintained under Article 64, even before the ripening of title by way of adverse possession. By perfection of title on extinguishment of the owner?s title, a person cannot be remediless. In case he has been dispossessed by the owner after having lost the right by adverse possession, he can be evicted by the plaintiff by taking the plea of adverse possession. Similarly, any other person who might have dispossessed the plaintiff having perfected title by way of adverse possession can also be evicted until and unless such other person has perfected title against such a plaintiff by adverse possession. Similarly, under other Articles also in case of infringement of any of his rights, a plaintiff who has perfected the title by adverse possession, can sue and maintain a suit.60. When we consider the law of adverse possession as has developed vis¬à¬vis to property dedicated to public use, courts have been loath to confer the right by adverse possession. There are instances when such properties are encroached upon and then a plea of adverse possession is raised. In Such cases, on the land reserved for public utility, it is desirable that rights should not accrue. The law of adverse possession may cause harsh consequences, hence, we are constrained to observe that it would be advisable that concerning such properties dedicated to public cause, it is made clear in the statute of limitation that no rights can accrue by adverse possession.61……We hold that plea of acquisition of title by adverse possession can be taken by plaintiff under Article 65 of the Limitation Act and there is no bar under the Limitation Act, 1963 to sue on aforesaid basis in case of infringement of any rights of a plaintiff.?17. Thus, there can be no manner of dispute that a plaintiff can claim title to the property based on adverse possession.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]10. From a perusal of the above facts, it is apparent that the claim of KS that he was the true owner of the land had been negatived at all stages. Therefore, HR was, no doubt, the owner of the land.In our considered view, the High Court has not given any cogent reasons for coming to the conclusion that KS was not in possession of the property. His name figured in the revenue record from 1963 to 1981 as the owner in possession. Presumption of truth is attached to revenue record which has not been rebutted. The High Court has held, and rightly so, that in the proceedings decided in favour of KS, HR or his legal representatives were not made parties. However, the High Court lost sight of the fact that in the proceedings filed by AR, KS was not impleaded as a party though his name was shown in the revenue record. It is obvious that both sides had tried to obtain orders behind each other?s back. Reliance cannot be placed on either of the documents in which all the parties were not duly represented. The net result is that KS is not the owner of the property, but it is equally true that from 1963, he had been shown to be in possession pursuant to the application (Exhibit P-10) and the order (Exhibit P¬11) of the Tehsildar. This possession was adverse to the true owner. It was openly hostile to the claim of HR and his legal representatives and they never filed a suit for possession of the property. Once it is held that KS was in possession of the suit property, the consequence will be that he is in adverse possession. The legal representatives of HR have failed to show- how they obtained possession from HR. Even, according to the case of HR, it was AR who was in possession as a tenant. AR surrendered part of the land to KS and not to HR. No doubt, in later proceedings in which KS was not a party, AR made a statement that he was never a tenant in the suit, but such statement flies in the face of the pleadings of AR in O.S. No.79 of 1949 filed by HR and the decisions in those proceedings. Furthermore, AR had executed a registered sale¬ cum-release deed jointly with KS and this was ratified by the Tehsildar.15. In view of the aforesaid facts, it is apparent that the legal heirs of HR miserably failed to prove how they came into possession of the suit property. Therefore, we are clearly of the view that the High Court gravely erred in coming to the conclusion that KS was not in possession of the suit property when the suit was filed. He may have been dispossessed after filing of the suit but that has no effect on the case.Thus, there can be no manner of dispute that a plaintiff can claim title to the property based on adverse possession.