15 Jan 2121

Possession alone is insufficient without animus possidendi - Karnataka High Court

Case : Smt. Noor Aftab Parveen and Ors. v. Smt. Vijaya and Anr. Regular Second Appeal No.864/2015

Court : Karnataka High Court

Bench : Justice S. Sunil Dutt Yadav

Decided on : 15 Jan 2121

The Relevant Statutes

Article 64, 65, 27, 113 and Section 27 of the Limitation Act, 1963

Section 100 and Order VI Rule 17, Order II Rule 2, Order 41 Rule 22(1), Order 21 Rule 58, Order 20 Rule 12 of the Code of Civil Procedure, 1908

Section53A of the Transfer of Property Act, 1882

Brief Facts & Procedural History

1. The plaintiffs are the children of the late Smt. Tairunnisa and they are seeking to secure their rights to the suit schedule properties that were formerly hers. In the proceedings for partition in O.S.No.317/1956 brought against her brother Sri Kasimsab, the suit schedule properties were said to have fallen to Smt. Tairunnisa's Concerning the suit schedule properties, an agreement of sale was entered into between Sri H.C. Nagappa and Smt. Tairunnisa, and the prospective purchaser, hereby referred to as 'purchaser,' was put into possession under the said agreement. In the current proceedings, Sri H.C. Nagappa, the purchaser, is represented by his legal representatives, while Smt. Tairunnisa, the owner, is also represented by her legal agents.

2. Smt.Tairunnisa filed O.S.No.53/1972 against Sri H.C. Nagappa, seeking a permanent injunction because the sale transaction did not result in a sale deed and the claimed purchaser did not come forward. However, the suit was rejected with the conclusion that the injunction was not maintainable because it was proven that possession was handed to Sri H.C. Nagappa by the sale agreement.

3. During the interim, loanee Smt.Rudramma filed a lawsuit to reclaim the funds she had lent to Smt.Tairunnisa due to a default in repayment. The schedule properties were attached during the proceedings in Execution Petition No.69/1982. The purchaser, Sri H.C. Nagappa, had filed Misc. Case No.14/1983 and won the order's release of the schedule properties from attachment.

4. Sri H.C. Nagappa then filed an O.S.No.237/1989 suit for particular performance against Smt. Tairunnisa, which was later dismissed. Afraid of being wronged, R.A.No.50/1991 was filed to overturn the judgement dismissing the case. It's worth noting that, under Order VI Rule 17 of the Code of Civil Procedure, 1908, an application was made to amend the plaint to include the relief of a declaration of title by way of adverse possession. The judgement and decree in O.S.No.237/1989 were set aside in the said appeal proceedings, remanding the matter to the Trial Court, which order of remand was later set aside with a direction that the appeal is decided within five months, as per the order passed in MSA No.142/1994, which was filed in response to the judgement and decree in R.A.No.50/1991.

5. It's worth noting that after the appeal processes were begun as a result of the remand order, Sri H.C. Nagappa filed a document giving up his claim for specific performance relief and limiting his claim to the relief of adverse possession only. R.A.No.50/1991 was eventually thrown out. It was also the subject of an appeal in R.S.A.No.1034/2005, which was similarly dismissed.

6. However, in dismissing the second appeal, this Court stated that once a party claims to be in possession under a sale agreement, adverse possession cannot be claimed. It was also noted that, if the claim for adverse possession were to be considered, it would only apply from the date on which a document was submitted before the First Appellate Court abandoning the plea of a particular performance of the agreement and limiting the claim to adverse possession alone.

7. The Court went on to say that the purchaser, who admittedly had the property, could only be evicted in line with the law by initiating a petition for possession recovery.

8. Following the dismissal of R.S.A.No.1034/2005, the present suit, O.S.No.95/2006, was filed seeking possession recovery and mesne profits.

9. By judgement and decree, the suit in O.S.No.95/2006 was dismissed. The plaintiffs are not entitled to possession without first seeking a declaration of title, according to the trial court. The Court ruled in favour of the defendant, Sri H.C. Nagappa, who had been in possession since 1971 and had perfected his title by adverse possession. Regarding issue No. 4, the suit was filed on the date the cause of action arose, on which date the defendant filed a memo giving up his plea of specific performance while restricting the relief only to adverse possession, and also taking note of the observations made in R.S.A. No.1034/2005 reserving liberty to the present plaintiff to initiate proceedings for recovery of possession, the suit was filed on the date the cause of action arose, on which date the defendant filed a memo giving up his plea.

10. Regarding the bar of suit based on constructive res judicata, the trial court ruled in favour of Smt. Tairunnisa, holding that she should have claimed possession as a counterclaim in the suit O.S.No.237/1989, which was filed seeking specific performance of the agreement, and the suit was dismissed as a result.

11. Because the suit for possession was not based on dispossession, the First Appellate Court determined that Article 64 of the Limitation Act of 1963 did not apply. The suit based on the title under Article 65 of the Limitation Act, 1963 could not be maintained because of Smt. Tairunnisa's was based on revenue records. In the absence of any exchange deed between Smt.Tairunnisa and her brother Sri Kasimsab, the suit based on the title under Article 65 of the Limitation Act, 1963 could not be maintained.

12. As regards the finding of the Trial Court on issue No.3 that the defendants had proved that they had perfected their title by adverse possession, the First Appellate Court had concluded that the finding by the trial court on issue No.3 was erroneous, as till memo was filed giving up the plea of specific performance, there was no hostile intention to possess the property by the defendants in their own right and the present suit, viz., O.S.No.95/2006 having been filed in the year 2006 (within 12 years from the filing of memo), the finding that the defendants had perfected their title by way of adverse possession was held to be erroneous.

13. The First Appellate Court disagreed with the trial court's judgement that the claim was submitted promptly, ruling that when the agreement of sale was cancelled, Smt. Tairunnisa should have filed a suit for possession against Sri H.C. Nagappa. It was also noted that O.S.No.53/1972, which was filed against the defendant for an injunction, was dismissed, confirming that the defendant was in possession and that the limitation had begun to run at least from that date. Given the legal requirement of filing a claim for recovery of possession within twelve years of dispossession from the immovable property, the plaintiffs' entitlement to recovery of possession was held to be extinguished under Article 27 of the Limitation Act, 1963. As a result, the appeal was dismissed, with the decision and decree in O.S.No.95/2006 being upheld, however, the conclusions of the Court of First Instance were disagreed with.

The Issue(s) of the Case

Whether the First Appellate Court's judgement that the plaintiff's (appellant's) right to pursue recovery of ownership of the suit properties had expired under Section 27 of the Limitation Act, 1963, is supported by the information on record?

Whether, in light of the evidence and pleadings on record and the rights asserted by the plaintiff, the concurrent findings of the trial court and the First Appellate Court that the plaintiff did not have title to the property and that the present suit for recovery of possession was not maintainable without seeking a declaration of title in light of Article 65 of the Limitation Act, 1963 is sustainable in light of the evidence and pleadings on record and the rights asserted by the plaintiff, the present suit for recovery of possession was not maintained?

Whether the suit was barred by constructive res judicata because the plaintiffs, who were defendants in O.S.No.237/1989, had failed to file a counterclaim regarding the possession and thus the present suit was barred, is contrary to the settled position of law?

The Observations of the Court

For Issue 1

1. Honourable High Court of Karnataka at Bengaluru observed that the claim of adverse possession cannot be brought at the same time as the plaintiff's acceptance of ownership. In this case, the admitted facts show that the defendant accepted the plaintiff's ownership because he got into possession only based on a sale agreement signed by Smt.Tairunnisa.

2. Honourable High Court of Karnataka at Bengaluru also observed that in light of the law, the period of adverse possession still to be established concerning the ingredients could be deemed to have begun only when the defendant stopped claiming under the plaintiff's title, specifically repudiated the plaintiff's title, and established the adverse possession plea. Even if the elements of adverse possession had been proved by the time the complaint was filed in 2006, the twelve-year limit had not yet expired if the starting point was set as March 3, 2000.

3. Honourable High Court of Karnataka at Bengaluru also observed that In the present case, the defendant has specifically contended that the plaintiff ought to have filed a suit for recovery of possession when the agreement of sale was rescinded by Smt. Tairunnisa or on subsequent dates including when the defendant filed the written statement in O.S.No.53/1972 seeking the relief of permanent injunction or when the order in Misc. Case No.14/1983 was passed for an application under Order 21 Rule 58 of Code of Civil Procedure, 1908 whereby attachment of suit schedule property according to the proceedings in Execution Case No.69/1982 at the instance of the borrower, Smt. Rudramma came to be vacated at the instance of Sri H.C.Nagappa. Sri H.C. Nagappa was found to be in adverse possession in these proceedings. In the proceedings in R.R.T.No.21/1989-90 and as per the order made in M.R.No.19/1989-90, the plaintiff was also put on notice of adverse possession once the mutation entry was inserted into the name of Sri H.C. Nagappa by order, while simultaneously removing the entry in the name of Smt.Tairunnisa. As a result, it is argued that the current lawsuit is time-barred.

4. Honourable High Court of Karnataka at Bengaluru also observed that Another point to keep in mind is that simple possession without the necessary animus does not transform possession under the plaintiff's agreement of sale into unfavourable possession. On the filing of O.S.No.237/1989 requesting specific performance relief, the nature of animus and its absence becomes obvious. The legal benefit, if any, claimed by the defendant by pointing out the plaintiff's inaction in instituting the suit for recovery of possession has been wiped out by the defendant's action in accepting the plaintiff's title by filing a suit for specific performance between when the agreement of sale is said to have been rescinded by Smt. Tairunissa and when O.S.No.237/1989 was filed.

5. Honourable High Court of Karnataka at Bengaluru also observed that As previously stated, regardless of the events that the defendants cite to argue that their possession was adverse before the filing of the suit for specific performance, the defendants' subsequent conduct in filing O.S.No.237/1989 for specific performance, clearly admitting Smt. Tairunnisa as the owner would be ambiguous and insufficient to indicate possession with 'animus possidendi', in light of the principle enunciated in Powell v. McFarlane and Another1979 (38) P. & C.R. 452. As a result, it is impossible to say that the plaintiffs were ever evicted until March 3, 2000.

For Issue 2

6. Honourable High Court of Karnataka at Bengaluru observed that The First Appellate Court's decision that Article 65 of the Limitation Act, 1963 cannot be used because of Smt. Tairunnisa's to the land was not vested in her since there was no paperwork transferring the property to her by her brother Sri Kasimsab is erroneous and should be overturned.

7. Honourable High Court of Karnataka at Bengaluru also observed that for Article 65 of the Limitation Act, 1963, the question of title should be construed in context. In this matter, the disputants are Smt. Tairunnisa, who claims title based on the decision in O.S.No.317/1956, and Sri H.C. Nagappa and his legal agents, who claim rights based on the agreement of sale and are therefore strangers to Smt. Tairunnisa's family and her brother. Given the position of Smt. Tairunnisa's legal representatives in comparison to the position of Sri H.C. Nagappa legal representatives, the title of Smt. Tairunnisa in a legal action brought by them against the defendant is valid as against the entire world, except the actual owner.

8. Honourable High Court of Karnataka at Bengaluru also observed that It is also worth noting that the defendants in O.S.No.237/1989's complaint about particular performance have expressly accepted the defendant's ownership, which is the foundation for the suit filed for specific performance, albeit such remedy was later waived. Even in the case of the adverse possession remedy sought in R.A.No.50/1991, the defendants have stated clearly that Smt. Tairunnisa is the owner. In light of this position, the defendants are barred from now claiming that Smt. Tairunnisa was not the owner and that her brother had the title. Apart from that, it is well-established law that a party cannot approbate and reprobate, and the defendants are no longer authorised to enter any plea challenging the title of Smt.Tairunnisa. The whole plea of adverse possession is predicated on the assumption and acceptance that Smt. Tairunnisa is the owner, and that the defendants have perfected their claim by adverse possession against her. As a result, the defendants are barred from bringing any additional counter-claims in light of their previous actions.

For Issue 3

9. Honourable High Court of Karnataka at Bengaluru observed that the plaint and written statement in O.S.No.237/1989 has not been presented to the trial court in this matter. While defending the suit for a particular performance in O.S.No.237/1989, the plaintiff should have pursued a counterclaim regarding possession. In the absence of a pleading, such as a plaint in O.S.No.237/1989, the mere production of judgement in O.S.No.237/1989 will not suffice to record a finding as to whether the plaintiff should have sought possession by way of counterclaim, and thus, the finding that the plaintiff's current suit seeking recovery of possession was barred by the principle of constructive res judicata is not sustainable.

10. Honourable High Court of Karnataka at Bengaluru also observed that the identity of the cause of action in the earlier suit and the present suit must be examined to record a finding as to whether the present suit is barred due to the failure to file a counterclaim in the earlier proceedings, and thus the present suit was barred by the principle of res judicata, as well as Order II Rule 2 of the Code of Civil Procedure, 1908. The reason of action may be interpreted after reading the whole plant and is not confined to the cause of action specified in a specific paragraph of the plaint. It is impossible to say that the current suit is banned unless the cause of action in the earlier suit and the current suit are identical. The pleadings are a sine qua non for reaching such a finding, and they are missing in this instance. Further investigation into the merits of the claim as embodied in the significant issue of law would not be possible in the absence of pleadings. As a result, the defendant's reliance on the Apex Court's judgments in the cases of Virgo Industries (Eng.) Private Limited v. Venturetech Solutions Private Limited (2013) 1 SCC 625 and Van Vibhag Karamchari Griha Nirman Sahakari Sanstha Maryadit (Registered) v. Ramesh Chander and Others (2010) 14 SCC 596, in terms of the substantive principle of law under Order II Rule 2 of Code of Civil Procedure, 1908 does not help him in this case. 

The Decision Held by the Court

Honourable High Court of Karnataka at Bengaluru held 

For issue 1

1. As previously stated, the plaintiff's legal title has not been extinguished by the plaintiff's graduation into adverse possession and the completion of twelve years of such adverse possession. It cannot be said that the plaintiff's right to sue for recovery of possession attempted to be exercised was extinguished until the plaintiff's title was destroyed by the perfection of title in the defendant. It is fair to assume that the plaintiff's right to sue for possession will continue until the defendant achieves positive title through adverse possession, which would be sufficient to terminate the plaintiff's right under Section 27 of the Limitation Act, 1963. As a result, the plaintiff's ability to sue for possession recovery is not barred by Section 27 of the Limitation Act, 1963.

2. As a result, law No. 1's central question is answered in the negative.

For issue 2

3. Given the foregoing, the significant question of law No.2 is answered in the negative, and the trial court's and First Appellate Court's conclusions are likely to be overturned.

4. Insofar as learned counsel for the defendants contends that the First Appellate Court's decision to reject the plea of adverse possession was erroneous and should be overturned in the exercise of powers under Order 41 Rule 22(1) of the Code of Civil Procedure, 1908, this contention cannot be construed as raising a substantial question of law that requires consideration.

For issue 3

5. As a consequence, the appeal is granted, along with costs. The judgement and decree dated 27.02.2015 by the I Additional District Judge, Chikkamagaluru in R.A.No.213/2011 are set aside, and the judgement and decree dated 26.11.2010 by the Court of the first instance, namely, Senior Civil Judge and Prl. JMFC, Tarikere in O.S.No.95/2006 is also set aside, and the suit is decreed in light of the discussion above.

6. The defendants are ordered to turn over custody of the suit schedule properties to the plaintiffs within three months of today's date. According to Order 20 Rule 12 of the Code of Civil Procedure, 1908, there will be a separate investigation into mesne earnings from the date of the suit until the date of delivery of possession.

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