KRISHNAMURTHY S. SETLUR DEAD BY LRS. versus O.V. NARASIMHA SETTY & ORS.

Citation: [2007] 2 S.C.R. 1097 · Decided: 23-02-2007 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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KRISHNAMURTHY S. SETLUR DEAD BY LRS. 
A 
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O.V. NARASIMHA SETTY & ORS. 
· • 
FEBRUARY 23, 2007 
[DR. ARIJIT PASA YAT AND S.H. KAPADIA, JJ.] 
B 
Constitution of India; Article 136-Civil Procedure Code, 1908; Section 
.. 
· 96-Suit for declaration of title on adverse possession and for permanent 
injunction decreed in favour of Plaintiff-High Court, in appeal, reversed the c 
judgment of the trial court-Correctness of-Held, High Court has committed 
serious errors in the impugned judgment and has not dealt with the plea of 
·-
adverse possession as required to be done by an appellate court-Hence, 
molter remitted back to the High Court to decide the appeal in accordance 
with law-Limitation Act, 1963; Sections 27 & 64. 
D 
Respondent-Original Plaintiff, who claimed to have purchased suit 
properties, filed a suit for permanent injunction for restraining the defendants 
- cultivating tenant and appellant - from interfering with his possession before 
trial court. The trial court dismissed the suit holding that the plaintiff had 
not proved his actual possession of the Suit properties; and that the tenant 
had attorned in favour of the appellant. The trial court, however, gave liberty E 
to the plaintiff to file a suit on title and for possession of the suit properties. 
Neither the original plaintiff not his legalheirs tiled a suit on title. 
Thereafter, the appellant filed a suit for declaration of title and for 
~ 
permanent injunction against the defendant-tenant before trial court which 
was dismissed. The respondent - original plaintiff was not made a party to F 
the suit. The High Court, however, allowed the appeal of the appellant holding 
that he had possessory title over the suit properties. 
The appellants intituted a suit for declaration of ownership of the suit 
properties against the respondents - legal heirs of the original plaintiff and G 
successors-in-title-and for permanent injunction. The trial court decreed the 
suit in favour of the appellants in view of the judgment of the High Court in 
earlier proceedings holding that the appellant had possessory title. The appeal 
filed by the respondents was allowed by the High Court. 
1097 
H 
1098 
SUPREME COURT REPORTS 
(2007] 2 S.C.R. 
A 
In appeal to this Court, the appellate contended that niether the original 
plaintiff nor his legal heirs instituted a suit for declaration of title despite 
·/ 
liberty givm by the trial court and hence they lost their right to rcover 
possession; that the possessory title held in favour of them cannot he allowed 
to be reopened in the present proceedings; and that the impugned judgment 
B of the High Court is full of contradictions and inconsistent findings and hence 
the matter needs to be remitted back to decide afresh. 
c 
The respondents, supporting the impugned judgment, contended that 
they were not parties to the proceedings in which the High Court had 
possessory title in favour of the appellants. 
Allowing the appeal and remitting the case back to High court, the court 
HELD: I.I. Section 27 of the Limitation Act, 1963 operates to extinguish 
the right to property of a person who does not sue for its possession within 
the time allowed by law. The right extinguished is the right which the lawful 
D owner has and against whom a claim for adverse possession is made, therefore, 
the plaintilTwho makes a claim for adverse possession has to plead and prove 
the date on and from which he claims to be in exclusive, continous and 
undisturb1:d possession. The question whether possession is adverse or not 
is often one of simple fact but it may also be a conclusion of law or a mixed 
question oflaw and fact. The facts found must be accepted, but the conclusion 
E drawn from them, namely, ouster or adverse possession is a question of law 
and has to be considered by the court. (Para 131[1107-G-H; 1108-A) 
1.2. The impugned judgment of the High Court is a bundle of confusion. 
It quotes depositions of witnesses as findings. It quotes findings of the courts 
below which have been set aside by the High Court in the earlier round. It 
F criticizes the findings given by the coordinate Bench of the High Court in 
the earlier round of litigation. It does not answer the question of law which 
arises for determination in this case. In the matter of adverse possession, the 
courts have to find out the plea taken by the plaintiffin the plaint. In the plaint; 
the plaintiff who claims to be owner by adverse possession has to 

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