MALLIKARJUNAIAH versus NANJAIAH & ORS.

Citation: [2019] 6 S.C.R. 1073 · Decided: 26-04-2019 · Supreme Court of India · Bench: ABHAY MANOHAR SAPRE · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

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1073
MALLIKARJUNAIAH
v.
NANJAIAH & ORS.
(Civil Appeal No.7768 of 2011)
APRIL 26, 2019
[ABHAY MANOHAR SAPRE AND
DINESH MAHESHWARI, JJ.]
Suit – Declaration of title – According to the appellant-
plaintiff, the suit land fell to his share after the death of his father
by a partition amongst his brothers – In 1983, appellant noticed
that the suit land i.e. 1 Gunta in Sy. No. 17/3 was encroached upon
by the respondents-defendants – In 1992, appellant filed suit against
the respondents for declaration of his ownership over the entire
land including the suit land – Trial court and the First Appellate
Court held that respondents had perfected their title by adverse
possession – In the second appeal, the High Court declared
respondents to be the owner of the suit land by virtue of their adverse
possession – On appeal, held: Respondents had admitted the
ownership of the appellant over the entire land including the suit
land by setting up the plea of adverse possession over it –
Respondents failed to prove their adverse possession as there was
no element of either adversity or/and hostility between two co-
owners/brothers because in a dispute of this nature where both the
parties are related, possession of one is regarded as possession of
other unless the facts show otherwise – Also, there was no
knowledge of actual measurements of the suit land prior to the year
1983 – Plea of adverse possession was also not available to the
respondents as suit was filed well within 12 years from the date of
knowledge of adverse possession and 12 years had not completed
by then – The Courts below were not justified in declaring the
respondents to be the owner of the encroached portion of the suit
land by virtue of adverse possession – Judgment of the High Court
set aside – Thus, appellant-plaintiff’s suit decreed in its entirety
against the respondents-defendants – Respondents to vacate the
encroached portion (1 Gunta in Sy.No. 17/3) and hand over its
possession to the appellant.
[2019] 6 S.C.R. 1073
   1073
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SUPREME COURT REPORTS
[2019] 6 S.C.R.
Allowing the appeal, the Court
HELD: 1. Keeping in view the law relating to the adverse
possession, when the facts of the instant case are examined, there
is no hesitation in holding that the Courts below were not justified
in holding that the defendants have perfected their title over the
suit land qua the plaintiff by virtue of their adverse possession
over the suit land. This is said for the following reasons.
[Para 21][1079-C-D]
2.  First, it is not in dispute that the appellant(plaintiff) was
the owner of the entire land including the suit land, i.e., encroached
portion, which was alleged to be in possession of the
respondents(defendants). 
In 
other 
words, 
the
respondents(defendants) have admitted the ownership of the
appellant(plaintiff) over the entire land including the suit land by
setting up the plea of adverse possession over it; Second, the
burden to prove the adverse possession was on the
respondents(defendants) because it was they who had set up this
plea; Third, the respondents(defendants), failed to discharge this
burden; Fourth, there was no element of either adversity or/and
hostility between two co-owners/brothers because in a dispute
of this nature where both the parties are related to each other,
the possession of one is regarded to be the possession of other
unless 
the 
facts 
show 
otherwise; 
Fifth, 
the
respondents(defendants) failed to adduce any evidence to prove
that they were asserting their right of ownership over the entire
land or the suit land or its part openly and to the knowledge of
the appellant(plaintiff) continuously for a period of more than 12
years; Sixth, it is a settled principle of law that mere continuous
possession howsoever long it may have been qua its true owner
is not enough to sustain the plea of adverse possession unless it
is further proved that such possession was open, hostile,
exclusive and with the assertion of ownership right over the
property to the knowledge of its true owner. Such is not the case
here. Seventh, this was a case where both the parties were not
aware as to how much land was in exclusive possession of each.
In other words, here is a case where both the parties to the suit
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did not know as to how much land was in the exclusive possession
of the appellant (plaintiff) and how much land was in possession
of the respondents(defendants). It was only when the
appellant(plaint

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