Onus To Prove Adverse Possession Shifts To Defendants, Once Title Is Upheld In Plaintiff's Favour In Earlier Suit Between Same Parties : Supreme Court

The Supreme Court Bench comprising of Justice Rajesh Bindal and Justice Aravind Kumar, while adjudicating an appeal filed in Prasanna and Others V Mudegowda (D) By LRs, has held that the onus to prove acquisition by adverse possession shifts on the defendant, once the title of the property has been upheld in the name of Plaintiff by a judgment/decree in an earlier suit between the same parties.

BACKGROUND FACTS

In 1986, Mr. Srinivas Shetty (father of the Appellants) sold his property to Mr. Mudegowda through a registered sale deed. Thereafter, the Appellants filed a suit for partition and separate possession bearing O.S. No. 22 of 1986 against their father and Mr. Mudegowda, which was dismissed on 10.09.1987 while holding that at the time of execution of sale deed, Mr. Shetty was unmarried and the Appellants had not even taken birth. The Trial Court made an observation that Mr. Mudegowda was not in possession of the Property after purchasing the same and requires to file suit for possession of the Property. Further, the conveyance of the title of the Property from Mr. Shetty to Mr. Mudegowda was held to be valid.

Another suit was filed by the Appellants against Mr. Mudegowda seeking perpetual injunction in respect of the Property. The said suit was also dismissed while holding that Mr. Mudegowda possessed a valid title to the Property as the sale deed executed by Mr. Shetty was never challenged. It was also observed that Appellants had failed to establish their adverse possession of the Property and did not even contend that their title has been perfected by adverse possession.

Eventually Mr. Mudegowda filed a suit for possession of the Property which was dismissed for being barred by limitation. A first appeal was preferred before the High Court, wherein the Appellants submitted that a suit for possession filed beyond the period of 12 years, as prescribed under Article 64 of the Limitation Act, 1963, was barred by limitation.

The High Court held that there was no necessity for Mr. Mudegowda to file a suit for declaration of title since his title was declared valid in the earlier litigation between the same parties. On the issue of limitation, the High Court opined that if a suit is filed by the plaintiff pursuant to a finding in the earlier suit between the same parties, then a suit filed within 6 months of such finding would not be barred by limitation.

The Appellants filed an appeal before the Supreme Court against the High Court’s order.

SUPREME COURT VERDICT

The onus to prove acquisition by adverse possession shifts on the defendant, once the title of the property has been upheld in the name of Plaintiff by a judgment/decree in an earlier suit between the same parties

The Bench observed that the Trial Court’s finding that Mr. Mudegowda was not in possession of the Property was based on the premise that ‘Katha’ of the Property was not transferred in the name of Mr. Mudegowda. However, the tax paid receipts reflected the name of Mr. Mudegowda, on the basis of which a presumption would arise and such presumption had not been rebutted by the Appellants.

Further, Mr. Mudegowda and his mother had deposed that they were in possession of the Property after purchasing the same. Therefore, the Trial Court and High Court had negated the plea of Appellants that they had perfected their title through adverse possession. The Bench observed as under:

“It is trite law that once the title of the property has been upheld namely a finding has been recorded by a judgment and decree in the name of plaintiff in an earlier suit, in such circumstances, the onus to prove acquisition by adverse possession lay on the defendant.”

It was opined that since the Property was decreed in favour of Mr. Mudegowda vide order dated 10.09.1987 passed in O.S. No. 22 of 1986, therefore, thus there was no requirement for him to establish possession prior to the institution of the suit. The Appellants failed to establish that they were in possession of the Property to claim the relief of adverse possession.

Accordingly, the appeal has been dismissed.

Case Title: Prasanna and Others V Mudegowda (D) By Lrs

Citation: 2023 LiveLaw (SC) 381

Counsel for Appellants: Ms. Vrinda Bhandari, Mr. N.K. Verma, Ms. Anjana Chandrashekar.

Counsel for Respondent: Ms. Hetu Arora Sethi, Ms. Lalit Mohini Bhat, Mr. Abhimanyu Verma, Mr. K.S. Doreswamy.