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IN THE HIGH COURT OF KARNATAKA

KALABURAGI BENCH

DATED THIS THE 8TH DAY OF OCTOBER, 2015

BEFORE

THE HON’BLE MR. JUSTICE A.V.CHANDRASHEKARA

REGULAR SECOND APPEAL NO. 200304/2015

BETWEEN:

Abdul Hamed

S/o Shaikh AhmedAged about 35 years,Occ: BusinessR/o Haveli Galli

Vijayapura- 586 101. ... Appellant

(By Sri. Ameet Kumar Deshpande, Adv.)

AND:

1. Smt. BilkishbanuW/o Mohammad Shafi InamdarAged about 58 years,Occ: Household work

2. MajidS/o Mohammad Shafi Inamdar

Aged about 35 years,Occ: Service

3. SajidS/o Mohammad Shafi Inamdar

R

2

Aged about 32 years,Occ: Business

4. Smt. SeemaW/o Hajilal SutarAged about 32 years,Occ: Household work

All are R/o C/o N.M. Rozimdar

Behind K.E.B Near PragatiHigh School, Rajajinagar,Vijayapura- 586 101.

... Respondents(By Sri. D.P. Ambekar, Adv. for R1 to R4)

This Regular Second Appeal is filed under Section100 of CPC, against the judgment and decree dated:05.09.2015 passed in R.A. No.33/2012 on the file of thePrl. Senior Civil Judge, Vijayapur, dismissing the appealand confirming the Judgment and Decree dated:11.04.2012 passed in O.S. No.147/2008 on the file of

the Prl. Civil Judge At Vijayapura.

This appeal coming on for Admission this day, theCourt delivered the following:

JUDGMENT

The first defendant of an original suit in

O.S.144/08 which was pending on the file of Principal

Civil Judge, Vijayapura, has filed this appeal under

Section 100, C.P.C. challenging the concurrent

judgments passed against him. Respondents 1 to 4 are

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plaintiffs in the said suit. The 2nd defendant who is the

father of the 1st defendant, died during the pendency of

the appeal filed before the Senior Civil Judge,

Vijayapura. Since appellant is his legal heir, he has

filed this appeal.

2. The facts leading to the filing of the present suit

in O.S.144/08 and the present appeal are as follows:

a) The suit schedule property bearing CTS No.458

is a residential house in Ward No.5 of Vijayapura city.

It belonged to Mohamed Shafi Inamdar who was the

husband of the 1st plaintiff and father of plaintiffs 2 to

4. It is the case of the plaintiffs that the appellant-1st

defendant-Abdul Hameed was inducted as tenant and

he was paying rent at the rate of Rs.1,000/- p.m. After

the death of Shafi Inamdar, his wife and children

inherited the property.

b) Defendants are closely related to the plaintiffs.

Somehow they managed to get their names entered in

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CTS records on the basis of an alleged oral gift (Hiba)

stated to have been executed by deceased Mohamed

Shafi Inamdar in favour of the 1st defendant. Hence 1st

plaintiff chose to file a suit in O.S.97/93 before the

Munsiff Court at Vijayapura seeking a declaration to the

effect that the entry of 1st defendant’s name in the CTS

extracts were illegal and for continuing the name of the

1st plaintiff in the records as Khatedar. The present

appellant who was defendant in the suit had filed a

detailed written statement setting up the plea of Hiba

claiming absolute title.

c) The said suit came to be dismissed after contest

and hence the 1st plaintiff chose to file an appeal under

Section 96, C.P.C. before the Principal Civil Judge,

Vijayapura. The said appeal was allowed as against

which defendants filed regular second appeal before this

court in R.S.A.2304/05 which came to be dismissed at

the stage of admission.

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d) After dismissal of R.S.A.2304/05, plaintiffs got

issued a legal notice calling upon the defendants to

vacate and hand over possession of the suit property as

they were in illegal occupation. Defendants, according

to the plaintiffs, instead of complying with the demand

made, got issued a reply through their advocate stating

that they have been in possession as owners under the

alleged gift deed executed by Mohamed Shafi Inamdar.

Hence a suit was filed seeking the relief of declaration to

the effect that plaintiffs are the owners of the suit

schedule property and for possession and damages of

Rs.36,000/- at the rate of Rs.1,000/- p.m. for 3 years

prior to the filing of the suit, and also to award future

mesne profits.

e) The said suit was contested by the defendants

denying all material averments. The averment that the

2nd defendant had been inducted by deceased husband

of the plaintiff as tenant and he had agreed to pay rent

of Rs.1,000/- p.m. at Rs.1,000/- p.m. is specifically

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denied. The averment that the plaintiffs are owners of

the schedule property is also specifically denied. It is

averred that the suit is not maintainable either in law or

on facts and it hit by Order II Rule 2, C.P.C. since the

plaintiff did not seek the relief of possession when the

earlier suit was filed in O.S.97/93. It is his case that

he has perfected his title by adverse possession being in

possession for more than 12 years adversely to the

interest and openly to the knowledge of the original

owner.

f) On the basis of the above pleadings, the

following issues were framed by the trial court:

1) Whether plaintiffs prove that they are the

owner of CTS No.458 situated in ward no.V of

Bijapur?

2) Whether plaintiffs prove that defendants are in

illegal possession over the eastern half portion

of CTS no.458?

3) Whether the defendants prove that suit is not

maintainable in view of Order II Rule 2, C.P.C.?

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4) Whether plaintiffs are entitled to damages as

claimed?

5) Whether plaintiffs are entitled for mesne

profits?

6) Whether plaintiffs are entitled for the relief

sought?

7) What order or decree?

ADDITIONAL ISSUES:

1) Whether defendant no.1 proves that he is an

absolute owner and in possession and

enjoyment of the suit property by virtue of the

Hiba (gift deed) made by deceased husband of

plaintiff on 22.10.1990?

2) Whether defendant no.1 proves that he is in

possession and he perfected his title over the

suit property by way of adverse possession

since 22.10.1990?

PRELIMINARY ISSUE:

Whether suit of plaintiff is barred by Section 3 of

Limitation Act for lapse of 12 years?

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The 1st plaintiff is examined as PW1 and 9 exhibits are

got marked. The 1st defendant-Abdul Hameed got

examined himself as DW1 and one witness as DW2 and

in all 94 exhibits are got marked. Ultimately the suit

came to be decreed after contest answering issue nos.1,

2, 4 and 6 in the affirmative and additional issues 1 and

2, issue no.3 and preliminary issue in the negative.

Against the said judgment, appeal was filed by both the

defendants under Section 96, C.P.C. before the Senior

Civil Judge, Vijayapura, in R.A.33/12. The said appeal

is dismissed after contest on 5.9.2015 by framing the

following points for consideration, as found in

paragraph 11 of the impugned judgment:

1) Whether the defendants have established

that the trial court has committed an

error by decreeing the suit of the

plaintiffs only on the basis of the findings

given in RA.157/02, which was

confirmed in RSA.2304/05?

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2) Whether the defendants established that

the judgment and decree of the trial

court is capricious, perverse, illegal and

contrary to the law?

3) What order?

Both the points are answered in the negative. Hence

the present appeal is filed under Section 100, C.P.C.

3. What is argued before this court by the learned

counsel for the appellant, Mr.Ameetkumar Deshpande

is that the suit in O.S.144/08 was hit by Order II Rule

2, C.P.C. since plaintiffs had not sought the relief of

possession when the earlier suit was filed for the relief

of declaration to the effect that incorporation of the

name of the defendants in CTS records was illegal and

incorrect. It is further argued that the defendants had

not only denied title of the plaintiffs on the basis of

Hiba executed by the deceased husband in favour of the

1st defendant, but had even emphatically denied their

title. Therefore, it is argued that the suit so filed in the

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year 2008 was specifically barred by time and that a

specific assertion was made by the defendants in the

written statement filed in O.S.97/93 on 4.1.1995 not

only denying title of the plaintiff, but also asserting their

own title on the basis of Hiba. It is further argued that

the plea of adverse possession starts from 22.10.1990.

4. Sri Ameetkumar Deshpande has relied upon

Volume 19 of the I Edition of Halsbury’s Laws of

England at page 113 to contend that possession under

an invalid deed continuing for more than 12 years

would ripen into adverse possession and therefore, the

trial court and first appellate court have not looked into

this material aspect. It is argued that both the courts

have adopted wrong approach to the real state of affairs

and the evidence placed on record has not been tested

on the touchstone of intrinsic probabilities. In page 113

it is held as follows:

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‘If a person enters into possession of land

under a lease which is absolutely void

and pays no rent, this is discontinuance

by the owner of the land and the statute

will run against the owner from the time

that possession or lease begins.’

Reliance is placed on this proposition on the basis of the

decision reported in the case of PRESIDENT AND

GOVERNORS OF MAGDALAN HOSPITAL .v. KNOTTS

(1879).4.APP).

5. Per contra, learned counsel for the respondents-

plaintiffs Sri.Ambekar has argued that 1st plaintiff was

left with no other option except to get the false entry

removed from CTS records. He has argued that the plea

of Hiba once again taken in the written statement filed

in the year 2008 is hit by the principles of res judicata.

It is argued that the plea of adverse possession was set

up for the first time in the suit of 2008 and even in the

reply notice got issued by the defendants, no such plea

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was taken. It is argued that the plea of adverse

possession was never taken by the defendants even in

the written statement filed before the trial court, but

was added after amendment was allowed to that effect

only in the year 2009.

6. Sri D.P.Ambekar has argued that as per the facts

of the case in the case of MAGDALAN HOSPITAL

(supra), execution of an invalid deed had been accepted.

But in the present case the alleged Hiba relied on by the

defendants had been emphatically denied and

defendants had suffered a negative finding in the earlier

round of litigation. To this effect, the attention of this

court is drawn to the final observation made by the first

appellate court in R.A.157/02 (Ex.P3). It is argued that

the date of the alleged Hiba is 22.10.1990 and for the

first time defendants got their name entered in the year

1993 in collusion with CTS authorities and therefore,

immediately the 1st plaintiff filed the suit in the year

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1993 itself to remove their name. It is argued that the

Hiba was not executed by deceased Mohamed Shafi

Inamdar. Hence it is argued that the plea of adverse

possession is not tenable and the same has been rightly

rejected by the trial court and first appellate court, and

this court being the second appellate court under

Section 100, C.P.C. cannot interfere with such factual

finding.

7. It is argued by Sri D.P.Ambekar that the

prohibition found under Order II Rule 2, C.P.C. is not

applicable to the facts of this case since the 1st plaintiff

was interested only in getting the cloud cast on her title

cleared, and she got it removed by filing an appropriate

suit. Hence there was no occasion for the plaintiff to

seek possession and non-seeking of that relief will not

come within Order II Rule 2, C.P.C. He has further

argued that his allegation was mainly against the CTS

authorities in colluding with the defendants in the

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manner of entering their names as Khatedars without

there being any valid transfer of title from the original

owner. It is argued that possession so asserted by the

defendants is unlawful and in the light of their inability

to prove the plea of adverse possession. The trial court

is justified in granting the relief of possession and the

first appellate court is also justified in confirming such

finding is his contention. Hence, he requests the court

to dismiss the appeal on the ground of adverse

possession.

8. Sri Ameetkumar Deshpande has relied on a

decision of the Hon’ble apex court in the case of

ANATHULLA SUDHAKAR .v. BUCHI REDDY (DEAD)

BY L.Rs. (AIR 2008 SC 2033) to contend that in the

earlier suit, cause of action had arisen to the 1st plaintiff

to seek the relief of declaration of title and possession

and in the light of non-seeking of such relief, suit is hit

by the principles of Order II Rule 2, C.P.C.

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REASONS:

9. Admittedly, the property in question belonged to

Sri Md. Shafi Inamdar i.e. the deceased husband of first

plaintiff the father of plaintiff Nos.2 to 4. Both the

defendants had got their names entered in CTS records

on the basis of an oral Hiba stated to have been

executed by Md.Shafi in favour of first defendant Abdul

Hameed on 22.10.1990. Since the defendants set up

their own independent title to the property on the basis

of the Hiba and consequential incorporation of their

names in the CTS records, Smt. Bilkishbanu chose to

file a suit for the relief of declaration to the effect that

the incorporation of the names of defendants in the CTS

records was illegal and void and for removal of the

same. Said suit was filed in O.S.No.97/1993 before the

then Munsiff Court at Vijayapur. The said suit was

contested by both the defendants. The defendants

therein had mainly admitted the ownership of the

deceased Md.Shafi Inamdar; but had asserted their title

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on the basis of Hiba. The issues framed in

O.S.No.97/1993 are found in Ex.D8 framed by the

Principal Munsiff Court at Vijayapur on 03.02.1996 are

as follows;

1. Whether the plaintiff proves that herself

and her children are the owners of the

property bearing RTS No.458 in Ward-5 of

Bijapur City?

2. Whether the plaintiff proves that defendant

No.1 is the tenant of the suit disputed

property bearing CTS No.458?

3. Whether the plaintiff proves that entry of

the name of defendant No.1 in the CTS

records of the suit property is illegal and

void?

4. Whether the defendants prove that gift of 3

rooms situated towards the eastern side of

CTS No.458 in favour of defendant No.1 on

22.10.1990 as alleged at para-7B of the

written statement?

5. Whether the defendant No.1 and 2 prove

that in pursuance of the said oral gift

defendant No.1 came in possession of the

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said three rooms as a owner having

accepted the gift so offered by husband of

plaintiff?

6. Whether the defendants-1 and 2 prove the

due execution of the acknowledging the

execution of oral gift by the husband of

plaintiff, and its validity?

7. Whether the defendant-1 and 2 prove that

by virtue of the acceptance of the said oral

gift it is defendant-1 to became the

absolute owner of the said three rooms of

the property bearing CTS No.458?

8. Whether the defendants-1 and 2 prove that

suit of the plaintiff is false and vexatious

and hence they are entitle for

compensatory cost as claimed?

9. Whether the plaintiff proves the

correctness of the discription of the suit

property?

10. To what reliefs the plaintiff is entitle for?

11. What order and Decree?

10. It was contested and ultimately suit was

dismissed. Against the said judgment and decree of

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dismissal, plaintiff Bilkishbanu chose to file an appeal

in terms of Section 96 of CPC before the Court of

Principal Senior Civil Judge at Vijayapur in

R.A.No.157/2002. The said appeal was allowed in its

entirety and the suit filed in O.S.No.97/1993 was

decreed as prayed for and the incorporation of the

names of the defendants therein in CTS records was set

aside. The said appeal was allowed on 31.08.2005. The

certified copy of the judgment passed in RA

No.157/2002 is found in Ex.P2 and Ex.P3 is the

certified copy of the decree in R.A.No.157/2002.

Following is the order passed by the First Appellate

Court in R.A.No.157/2002 in the operative portions is

as follows:

“The appeal filed by the Appellant-Plaintiff

is allowed.

The judgment and decree passed by the

Trial Court is hereby set aside.

It is declared that the entry of the name of

defendant No.1 in property card of CTS

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No.458 of Ward No.V of Bijapur is set aside

and cancelled, since it is illegal and void.

The defendants do pay the costs

throughout”.

11. Against the said divergent judgment and decree

passed in R.A.No.157/2002, both the defendants of

O.S.No.97/1993, chose to file a second appeal before

this Court under Section 100 of CPC in RSA

No.2304/2005. The certified copy of the judgment

passed by this Court at the time of admission is found

in Ex.P4. The said second appeal came to be dismissed

at the time of admission itself holding that no

substantial question of law arose for consideration.

12. It had been contended before this Court also that

planitiff/Smt.Bilkishbanu was not in possession and

hence the relief of substituting the entries could not

have been granted. The said contention is not accepted

by this Court while dismissing the second appeal at the

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time of admission. In Paragraph No.6 of Ex.P4, the

judgment passed by this Court, it is held that the

question of not asking relief of declaratory under

Section 34 of the Specific Relief Act, need not be gone

into.

13. In paragraph No.26 at page No.13 of the judgment

passed in R.A.No.157/2002, the learned Judge of the

First Appellate Court has held as follows:

“All the activities of the defendants and the

ADLR are based on the documents at

Ex.D3, D18 and D19, as discussed above

the documents referred above are

fabricated and illegal and do not bear the

signature of deceased Mohammad Shafi.

The entries and actions taken on Ex.D3,

D.18, and D19 are doubtful and therefore

not acceptable. Thus my humble opinion

the deceased Mohammad Shafi at no time

had gifted away the property in favour of

defendant No.1. Thus, in my opinion, the

order passed by the Trial Court is illegal,

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perverse, capricious and contrary to law

and hence it is liable to be set aside”.

14. Reliance is placed upon a decision of this Court in

the case of Laxmibai V/s Thoreppa reported in AIR

1982 KAR 248. Article 65 of the Limitation Act, 1963

relating to adverse possession is discussed in the said

decision. What is held in Laxmibai’s case is that,

possession held by a person even under an inadmissible

document becomes adverse to true owner. As per the

facts of the said case, the sale deed had an endorsement

to the effect that the suit houses were sold to defendant

for of Rs.200/-. It is no doubt true that the

endorsement should have been registered and hence it

was not admissible in evidence. But possession under

an inadmissible document becomes adverse to the true

owner. That endorsement was made in the year 1937

and hence this Court, as per the evidence placed on

record, held that adverse possession commenced from

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that year and in the absence of evidence to show that

thereafter the defendants paid rent to the owner, the

defendants would be deemed to have perfected his title

by adverse possession.

15. In the instant case, the very Hiba relied upon by

the defendants in the earlier suit is not only held to be

not proved but also it is held to be a fabricated and an

illegal document and that it does not bear the signature

of deceased Mohammad Shafi at all. In the present case

the plaintiffs have not admitted the documents marked

as Ex.D3, D18, D19 referred to in the earlier suit

bearing O.S.No.97/1993. Therefore, the decision

rendered in the case of Laxmibai’s case is clearly

distinguishable on facts and hence it is not applicable to

the present case.

16. Learned counsel for the appellant has relied upon

a decision of the Hon’ble Apex Court rendered in the

case of Anathula Sudhakar V/s P.Buchi Reddy (Dead)

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By Lrs And Others reported in (2008) 4 SCC 594,

wherein Section 38 of the Specific Relief Act, 1963, has

been dealt at length by the Hon’ble Apex Court. The

scope of Section 100 of CPC, in regard to the power of

High Court to interfere with the concurrent findings is

also dealt with at length. What exactly should be the

approach when the defendant emphatically denies the

title of the plaintiff relating to the immovable property,

was the subject matter. Summarizing the position in

regard to the suit for prohibitory injunction relating to

immovable property, Hon’ble Apex Court has held in

paragraph No.21 of Anathula Sudhakar’s case is as

follows:

21. To summarise, the position in regard to

suits for prohibitory injunction relating to

immovable property, is as under:

(a) Where a cloud is raised over the plaintiff’s

title and he does not have possession, a

suit for declaration and possession, with

or without a consequential injunction, is

the remedy. Where the plaintiff’s title is

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not in dispute or under a cloud, but he is

out of possession, he has to sue for

possession with a consequential

injunction. where there is merely an

interference with the plaintiff’s lawful

possession or threat of dispossession, it

is sufficient to sue for an injunction

simpliciter.

(b) As a suit for injunction simpliciter is

concerned only with possession, normally

the issue of title will not be directly and

substantially in issue. The prayer for

injunction will be decided with reference

to the finding on possession. But in

cases where de jure possession has to be

established on the basis of title to the

property, as in the case of vacant sites,

the issue of title may directly and

substantially arise for consideration, as

without a finding thereon, it will not be

possible to decide the issue of possession.

(c) But a finding on title cannot be recorded

in a suit for injunction, unless there are

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necessary pleadings and appropriate

issue regarding title (either specific, or

implied as noticed in Annaimuthu

Thevar). Where the averments regarding

title are absent in a plaint and where

there is no issue relating to title, the

Court will not investigate or examine or

render a finding on a question of title, in

a suit for injunction. even where there

are necessary pleadings and issue, if the

matter involves complicated questions of

fact and law relating to title, the Court

will relegate the parties to the remedy by

way of comprehensive suit for declaration

of title, instead of deciding the issue in a

suit for mere injunction.

(d) Where there are necessary pleadings

regarding title, and appropriate issue

relating to title on which parties lead

evidence, if the matter involved is simple

and straightforward, the Court may

decided upon the issue regarding title,

even in a suit for injunction. But such

cases, are the exception to the normal

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rule that question of title will not be

decided in suits for injunction. But

persons having clear title and possession

suing for injunction, should not be driven

to the costlier and more cumbersome

remedy of a suit for declaration, merely

because some meddler vexatiously or

wrongfully makes a claim or tries to

encroach upon his property. The court

should use its discretion carefully to

identify cases where it will enquire into

title and cases where it will refer to the

plaintiff to a more comprehensive

declaratory suit, depending upon the

facts or the case.

17. The case of the plaintiffs is that the defendants

attempted to create a cloud on their title and therefore

first plaintiff had to file a suit seeking the relief on

declaration to the effect that the CTS entries based on

oral Hiba were illegal and void. The suit was filed in

O.S.No.97/1993 was dismissed as against which an

appeal was filed and the said appeal came to be allowed.

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Consequentially, suit came to be decreed. It was not

just a mere declaration to hold that CTS entries were

illegal but it was in essence a suit filed for the relief of

declaration to the effect that the alleged Hiba relied

upon by the defendants for getting their names

incorporated in CTS records was held on an illegal and

fabricated document. Thus the defendants had

thoroughly failed to setup their own title in the earlier

round of litigation initiated by the first plaintiff.

18. What is argued before this Court by the learned

counsel for the appellant is that, the present suit is hit

by the principles of Order 2 Rule II in as much as no

relief of possession was sought in the earlier round of

litigation in spite of the specific denial of title of the

plaintiff, was taken in the written statement filed in the

year 1995, during the first round of litigation. This

Court is unable to accept the same for the simple

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reason that the said aspect should have been urged in

the earlier round of litigation.

19. What is argued before this Court is that, the case

of the plaintiffs is that the deceased/second defendant

was inducted into the property as a tenant and

therefore they are expected to make out a clear case of

the existence of jural relationship of landlord and tenant

and the termination of tenancy to seek ejectment. On

the other hand, the defendants had emphatically denied

the title of plaintiff in the earlier round of litigation

setting up the plea of oral Hiba and as already

discussed, that has been negatived by the First

Appellate Court in the earlier round of litigation.

20. The defendants have now taken up the plea of

adverse possession and additional issues are framed to

that effect. Whoever takes plea of adverse possession

must admit the title of the adversary. Parties seeking to

29

set up the plea of adverse possession must prove that

he or she has had been in possession of the property of

the adversary for over a period of 12 years openly to the

knowledge and adversely to the interest of original

owner. A plea to this effect was taken up by the

defendants for the first time in the written statement

was filed in O.S.No.147/2008. The plaintiffs had got

issued a legal notice terminating the tenancy and

seeking possession of the suit property. Ex.P5 is the

legal notice got issued by the plaintiffs through their

advocate on 07.01.2008 and Ex.P-8 is the reply got

issued by the defendants through their advocate on

16.01.2008. Even in the reply notice issued by Ex.P8

plea of adverse possession is not setup. Apart from

this, plaintiffs and defendants are closely related to each

other. Deceased Mohammad Shafi, the husband of first

plaintiff Bilkishbanu, was the brother of the wife of

deceased defendant No.2. Plea of adverse possession is

a weak plea especially amongst close relatives.

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21. In the light of defendants having asserted their

own title to the property on the basis of Hiba in the

earlier round of litigation and having thoroughly failed

to prove not only the Hiba but also their possession on

the basis of adverse possession, it is to be held that they

are in unlawful possession and therefore plaintiffs,

being the owners of the property, are entitled to seek

possession. Therefore the trial Court has granted the

decree of possession and First Appellate Court has

confirmed the same. No legal infirmity is found in the

approach adopted by both the courts.

22. From the documents placed on record, it can be

said that first plaintiff was very much interested in

getting the cloud removed by filing a suit for

cancellation of the CTS entries under which names of

the defendants had been incorporated. The plaintiffs

have never admitted the execution of alleged Hiba and

therefore, as already discussed, the decision rendered in

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the case of Laxmibai V/s Thoreppa reported in AIR

1982 KAR 248, is not applicable to the facts of this

case.

23. Non-seeking of possession in the said suit did not

disentitle them to seek possession by filing a suit at a

later point of time as their title was perfect. An attempt

is made by the defendants to deny the title of the

plaintiffs on an altogether new ground without any

basis and therefore both the Courts have not

countenanced the approach of the defendants as either

illegal or proper.

24. Necessary pleadings in regard to the clear title of

the plaintiffs are forthcoming in the plaint. The relief of

possession is only incidental to the establishment of

title. As already discussed, plaintiffs were able to

establish their title in the earlier round of litigation and

therefore setting up of an altogether new plea in the

next round of litigation will not disentitle the plaintiffs

32

to seek possession based on title, especially, in the light

of the inability of the defendants to prove the special

plea of adverse possession.

25. What is held in Anathula Sudharkar’s case in

paragraph No.21 (a) is that Where a cloud is raised over

the plaintiff’s title and he does not have possession, a

suit for declaration and possession, with or without a

consequential injunction, is the remedy. Where the

plaintiff’s title is not in dispute or under a cloud, but he

is out of possession, he has to sue for possession with a

consequential injunction. Hence the above decision is

not helpful to the appellant herein and is clearly

distinguishable on facts. On the other hand the said

decision is helpful to the case of plaintiffs.

26. In this view of the matter, the approach adopted

by the plaintiffs to seek the relief of possession based on

the declaration of their title in the earlier round of

litigation is just and proper.

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27. Learned counsel for the appellant has relied upon

a decision of the Hon’ble Apex Court rendered in the

case of P.K.Ramachandran V/s State of Kerala and

Another, reported in AIR 1998 SC 2276, to contend

that Courts have no power to extend the period of

limitation on equitable grounds. Observation made in

paragraph No.6 at 2277 of the said decision is referred

to and the same is as follows;

6. Law of limitation may harshly affect a

particular party but it has to be applied

with all its rigour when the statute so

prescribed and the Courts have no power

to extend the period of limitation on

equitable grounds. The discretion

exercised by the High Court was, thus,

neither proper not judicious. The order

condoning the delay cannot be sustained.

This appeal, therefore, succeeds and the

impugned order is set aside.

Consequently, the application for

condonation of delay filed in the High

Court would stand rejected and the

34

Miscellaneous First Appeal shall stand

dismissed as barred by time. No costs.

28. Question of extending the period of limitation on

equitable grounds does not arise in this case. Plaintiffs

have already established their title in the earlier round

of litigation and the defendants who are closely related

to the plaintiffs have already suffered an adverse

finding. Defendant has attempted to deny the plaintiff’s

title on the basis of a new ground in the later round of

litigation and has thoroughly failed.

29. Evidence adduced has been assessed on the touch

stone of intrinsic probabilities by both the courts. No

perversity or illegality is found in the approach adopted

by both the Courts in regard to this appeal. Both the

courts have adopted right approach to the real state of

affairs. Questions of law framed proposed by the

appellant in this appeal memo, are not substantial

questions of law within the purview of Section 100 of

35

CPC to admit the present appeal. Even otherwise, no

substantial question of law arises in this appeal.

Accordingly appeal is liable to be dismissed as unfit for

admission.

ORDER

Accordingly, appeal is dismissed as unfit for

admission, with costs.

The defendants have been litigating

unsuccessfully on one ground or the other and have

been squatting over the property without any valid title.

As such, they are liable to vacate the property, within a

reasonable time.

Six (six) months time is granted to the appellant to

hand over the vacant possession of the suit property by

maintaining the same state of things as they exist today

till possession is handed over.

Sd/-

JUDGE

vgh/msr