Case: Narasamma and Ors Vs. A. Krishnappa

that his wife, Smt. Narasamma, possessed title was not established on the basis of the documents sought to be propounded. It is also relevant that none of the parties chose to implead her as a party. Once the case of the original Defendant was that it is Smt. Narasamma who had derived title, and alternative plea was of her adverse possession, then to establish that plea, at least, she ought to have been examined. 29. We may also note that on the one hand, the Appellants herein have sought to take a plea of bar of limitation vis-à-vis the original Defendant claiming that possession came to them in 1976, with the suit being filed in 1989. Yet at the same time, it is claimed that the wife had title on the basis of these very documents. The claim of title from 1976 and the plea of adverse possession from 1976 cannot simultaneously hold. On the failure to establish the plea of title, it was necessary to prove as to from which date did the possession of the wife of the Defendant amount to a hostile possession in a peaceful, open and continuous manner. We fail to appreciate how, on the one hand the Appellants claimed that the wife of the original Defendant, Appellant 1 herein, had title to the property in 1976 but on their failure to establish title, in the alternative, the plea of adverse possession should be recognised from the very date. 30. We also find that the reliance placed by learned Counsel for the Appellants in Ravinder Kaur Grewal and Ors.2 is also misplaced. The question which arose for consideration before the three Judge Bench was whether, a suit could be maintained for declaration of title and for permanent injunction seeking protection on a plea of adverse possession, or that it was an instrument of defence in a suit filed against such a person. In fact, if one may say, there was, for a long time a consistent view of the Court that the plea could only be of shield and not a sword. The judgment changed this legal position by opining that a plea to retain possession could be managed by the ripening of title by way of adverse possession. However, to constitute such adverse possession, the three classic requirements, which need to co-exist were again emphasized, nec vi, i.e., adequate in continuity, nec clam, i.e., adequate in publicity and nec precario, i.e., adverse to a competitor, in denial of title and his knowledge. 31. The question which confronts us is not the aforesaid, but whether simultaneously a plea can be taken of title and adverse possession, i.e., whether it would amount to taking contradictory pleas. In this behalf, we may refer to the four judgments cited by learned Counsel for the Respondent herein, which succinctly set forth the legal position. 32. In Karnataka Board of Wakf2 case, it has been clearly set out that a Plaintiff filing a title over the property must specifically plead it. When such a plea of adverse possession is projected, it is inherent in the nature of it that someone else is the owner of the property. In that context, it was observed in para 12 that ....the pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced.... 33. The aforesaid judgment in turn relied upon the judgment in Mohan Lal (Deceased) Thr. LRs.2, which observed in para 4 as under: 4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the 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 period of 12 years, i.e., upto completing the period of his title by prescription nec vi, nec clam, nec precario. Since the Appellants claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the Appellant. 34. In order to establish adverse possession an inquiry is required to be made into the starting point of such adverse possession and, thus, when the recorded owner got dispossessed would be crucial. 35. In the facts of the present case, this fact has not at all been proved. The possession of Smt. Narasamma, the wife of the Defendant, is stated to be on account of consideration paid. Assuming that the transaction did not fructify into a sale deed for whatever reason, still the date when such possession becomes adverse would have to be set out. Thus, the plea of adverse possession is lacking in all material particulars. 36. The possession has to be in public and to the knowledge of the true owner as adverse, and this is necessary as a plea of adverse possession seeks to defeat the rights of the true owner. Thus, the law would not be readily accepting of such a case unless a clear and cogent basis has been made out. 37. We may also note another judicial pronouncement in Ram Nagina Rai and Anr. v. Deo Kumar Rai (Deceased) by LRs and Anr.MANU/SC/1003/2018 : (2019) 13 SCC 324 dealing with a similar factual matrix, i.e., where there is permissive possession given by the owner and the Defendant claims that the same had become adverse. It was held that it has to be specifically pleaded and proved as to when possession becomes adverse in order for the real owner to lose title 12 years hence from that time. 38. The legal position, thus, stands as evolved against the Appellants herein in advancing a plea of title and adverse possession simultaneously and from the same date.

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 0

Reasoning from the judgment:
0[ds]24. It is relevant to note that on the crucial issue of the factual matrix regarding the documents and the conclusion to be drawn from them, both the Courts are ad idem. Not only grave doubt has been thrown on the story of the Appellants herein, but both Courts also record that the documents sought to be propounded by the Appellants, i.e., the Agreement of Sale, the Power of Attorney and the affidavit, have too many discrepancies to be treated worth their while. This is apart from the fact that the non-registration of the title document in favour of Smt. Narasamma, Appellant 1 herein, was sought to be explained away on the ground of there being a bar/prohibition on transfer of land, which aspect was however not proved by the Appellants by leading any evidence. There is also adverse comment on the testimony of the witnesses, who appeared on behalf of the Appellants, more so DW-2, who was alleged to have scribed Exhibits D-1 and D-2. As noticed above, the conclusion of the Trial Court was that this witness had either forgotten all facts or had given tutored evidence as he claimed that both Exhibits D-1 and D-2 were prepared on the same date while the documents were twelve (12) years apart. In fact, the Trial Court has succinctly set out that the treasury seals were found to be erased and fresh dates affixed on Exhibit D-1, the signature of late Mr. A. Muniswamappa was also found to be erased at a particular place, as also the fact that his name was traced on in the General Power of Attorney, Exhibit D-2. These findings have been categorically affirmed by the High Court, which is the last court on facts.25. We find no reason to disturb these concurrent findings of the Courts below, and even if we independently examine the evidence, there is no reason why we would come to a different conclusion.26. We also note that insofar as the title of the wife of the original Defendant is concerned, there is no doubt that it was an HUF property and was so managed; all technical objections sought to be raised by the Appellants herein have been repelled. However, despite this, the only reason for the High Court to reverse the conclusion of the Trial Court was that the original Defendant had not been able to establish the plea of adverse possession.27. If we examine the judgments of the courts below, more so in the context of the reasons which persuaded the High Court to interfere with the conclusions, which are set out in para 65 of the impugned judgment and extracted by us in para 17 hereinabove, it is our view that the finding that there was no specific plea of adverse possession would be difficult to sustain. We have already stated as to how and in what manner this plea has been set out in the written statement and extracted above. However, that is as far as it goes.28. We have already observed, as aforesaid, that the plea of the original Defendant that his wife, Smt. Narasamma, possessed title was not established on the basis of the documents sought to be propounded. It is also relevant that none of the parties chose to implead her as a party. Once the case of the original Defendant was that it is Smt. Narasamma who had derived title, and alternative plea was of her adverse possession, then to establish that plea, at least, she ought to have been examined.29. We may also note that on the one hand, the Appellants herein have sought to take a plea of bar of limitation vis-à-vis the original Defendant claiming that possession came to them in 1976, with the suit being filed in 1989. Yet at the same time, it is claimed that the wife had title on the basis of these very documents. The claim of title from 1976 and the plea of adverse possession from 1976 cannot simultaneously hold. On the failure to establish the plea of title, it was necessary to prove as to from which date did the possession of the wife of the Defendant amount to a hostile possession in a peaceful, open and continuous manner. We fail to appreciate how, on the one hand the Appellants claimed that the wife of the original Defendant, Appellant 1 herein, had title to the property in 1976 but on their failure to establish title, in the alternative, the plea of adverse possession should be recognised from the very date.30. We also find that the reliance placed by learned Counsel for the Appellants in Ravinder Kaur Grewal and Ors.2 is also misplaced. The question which arose for consideration before the three Judge Bench was whether, a suit could be maintained for declaration of title and for permanent injunction seeking protection on a plea of adverse possession, or that it was an instrument of defence in a suit filed against such a person. In fact, if one may say, there was, for a long time a consistent view of the Court that the plea could only be of shield and not a sword. The judgment changed this legal position by opining that a plea to retain possession could be managed by the ripening of title by way of adverse possession. However, to constitute such adverse possession, the three classic requirements, which need to co-exist were again emphasized, nec vi, i.e., adequate in continuity, nec clam, i.e., adequate in publicity and nec precario, i.e., adverse to a competitor, in denial of title and his knowledge.32. In Karnataka Board of Wakf2 case, it has been clearly set out that a Plaintiff filing a title over the property must specifically plead it. When such a plea of adverse possession is projected, it is inherent in the nature of it that someone else is the owner of the property. In that context, it was observed in para 12 that ....the pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced....33. The aforesaid judgment in turn relied upon the judgment in Mohan Lal (Deceased) Thr. LRs.2, which observed in para 4 as under:4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the 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 period of 12 years, i.e., upto completing the period of his title by prescription nec vi, nec clam, nec precario. Since the Appellants claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the Appellant.34. In order to establish adverse possession an inquiry is required to be made into the starting point of such adverse possession and, thus, when the recorded owner got dispossessed would be crucial.35. In the facts of the present case, this fact has not at all been proved. The possession of Smt. Narasamma, the wife of the Defendant, is stated to be on account of consideration paid. Assuming that the transaction did not fructify into a sale deed for whatever reason, still the date when such possession becomes adverse would have to be set out. Thus, the plea of adverse possession is lacking in all material particulars.36. The possession has to be in public and to the knowledge of the true owner as adverse, and this is necessary as a plea of adverse possession seeks to defeat the rights of the true owner. Thus, the law would not be readily accepting of such a case unless a clear and cogent basis has been made out.37. We may also note another judicial pronouncement in Ram Nagina Rai and Anr. v. Deo Kumar Rai (Deceased) by LRs and Anr.MANU/SC/1003/2018 : (2019) 13 SCC 324 dealing with a similar factual matrix, i.e., where there is permissive possession given by the owner and the Defendant claims that the same had become adverse. It was held that it has to be specifically pleaded and proved as to when possession becomes adverse in order for the real owner to lose title 12 years hence from that time.38. The legal position, thus, stands as evolved against the Appellants herein in advancing a plea of title and adverse possession simultaneously and from the same date.