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SUIT: Suit for declaration of title, possession, permanent 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 Court reversing it – On appeal, Held : Neither the 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 died leaving all his properties to his sons (the plaintiffs) under a will. He had mortgaged the suit property as also other properties to a Bank. The plaintiffs were prosecuting their studies at the time of their father’s death. Plaintiffs became aware of the suit property only 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, permanent injunction and mesne profits. The trial court decreed the Suit. On appeal, the High Court reversed the trial court’s judgment and dismissed the suit. Hence the appeal. =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 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 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 different from those recorded by the trial court. It is well settled that if the 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 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 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 trial court, it is bound to independently consider the 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 suit property was extinguished, by reason of defendant 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.D1 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. [Para 15] [627-F-G] 5. 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 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 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] 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) SCC 59 – relied on. Mohan Lal (Dead through LRs) vs. Mirza Abdul Gaffar 1996 (1) SCC 639, held inapplicable. 6. 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 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. [Para 19] [630-E-F] 7.1. The judgment in O.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 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] 7.2. The defendant has not produced any evidence 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 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 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 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 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 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. 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: 1996 (1) SCC 639 held inapplicable Para 16 1995 (6) SCC 523 relied on Para 17 2004 (1) SCC 271 relied on Para 17 2007 (6) SCC 59 relied on Para 17 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4125 of 2009. 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 Respondent.

1 Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.4125 OF 2009 [Arising out of SLP (C) No. 8405 of 2007] L. N. Aswathama & Anr. … Appellant(s) Vs. P. Prakash … Respondent (s) O R D E R R. V. Raveendran, J. Leave granted. 2.The appellants are the plaintiffs in … Continue reading

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