Held: Respondents admitted the ownership of the appellant’s father through whom the appellant claimed title – Even going by the respondents' case, the appellant was the co-owner of the property, and the respondents admittedly had no title in respect of the suit property – Thus, there was no issue involved about the title of the plaintiff and his father – It is not as if the respondents had set up a title in themselves or were claiming through somebody who was claiming the title – Their plea was of adverse possession against the appellant, which presupposes that the appellant was the owner – When in a suit simpliciter for a perpetual injunction based on title, the defendant pleads perfection of his title by adverse possession against the plaintiff or his predecessor, it cannot be said that there is any dispute about the title of the plaintiff – Hence, the plaintiff need not claim a declaration of title in such a case as the only issues involved in such a suit are whether the plaintiff has proved that he was in possession on the date of the institution of the suit and whether the defendant has proved that he has perfected his title by adverse possession – Therefore, in the present case, it was not necessary for the appellant to claim a declaration of ownership – There was no cloud on his title – Therefore, the suit, as originally filed, was maintainable – Burden was on the respondents to prove their plea of adverse possession, as there was a counter-claim (which is in the nature of a cross-suit) seeking a declaration of ownership based on adverse possession – High Court decided only one issue as to whether the amendment sought by the appellant for a prayer for declaration of ownership and possession, was barred by limitation – As the High Court did not consider the merits of the suit and counter-claim, regular second appeal remanded to the High Court – Impugned judgment set aside – Regular Second Appeal restored to the file of the High Court – Adverse Possession. [Paras 14, 16, 18, 20 and 21]
Adverse Possession – Plea of – When defeated – Two alternative pleas – Suit for perpetual injunction based on title filed by the appellant, respondents pleaded perfection of title by adverse possession – Respondents though admitted the title of the appellant’s father to the suit property, they disputed that the suit property was allotted to appellant’s share under the family settlement and claimed that the appellant’s brother ‘J’ was the allottee of the suit property in partition and respondents’ mother was put in possession of the suit property by ‘J’ in part performance of the agreement for sale in favour of their mother: Held: This contention completely militates against the plea of adverse possession as it completely defeats the plea of adverse possession – This contention shows that the respondents are not claiming hostile possession, which is an essential ingredient of a plea of adverse possession – At the trial stage, the respondents ought to have elected one of the two alternative pleas – However, issues framed by the Trial Court indicate that the respondents relied upon their plea of adverse possession as well as their plea based on the agreement for sale executed by the said ‘J’ – Further, the deed of partition pleaded by the respondents, based on which, according to them, ‘J’ became the owner, was admittedly not proved – In fact, in the written statement, the bare particulars of the partition on the basis of which ‘J’ became the owner were not even pleaded by the respondents. [Para 13]
LIST OF CITATIONS AND OTHER REFERENCES
Anathula Sudhakar v. P. Buchi Reddy (dead) by Lrs. and Others (2008)
4 SCC 594 : [2008] 5 SCR 331 – relied on.
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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