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CASE NO.: Appeal (civil)  5079 of 2000

PETITIONER: Krishnamurthy S. Setlur Dead by LRs

RESPONDENT: O. V. Narasimha Setty & Ors

DATE OF JUDGMENT: 23/02/2007

BENCH: Dr. Arijit Pasayat & S. H. Kapadia

JUDGMENT: J U D G M E N T

KAPADIA, J.

                This civil appeal arises out of judgment and decree rendered by  Karnataka High Court on 22.3.1999 filed under section 96 CPC against  judgment and decree dated 11.10.1996 passed in O.S. No. 3656/81 on the  file of City Civil Judge, Bangalore, decreeing the suit for declaration. By the  impugned judgment, the High Court has set aside the judgment and decree  dated 11.10.1996. Hence this civil appeal has been filed by the LRs. of   deceased Krishnamurthy S. Setlur (original plaintiff).

       The facts giving rise to this civil appeal are as follows.         One Kalyana Sundram Iyer was the owner of the suit properties.  H.R.  Narayana Iyengar (represented by his LRs.) claimed to have purchased the  suit properties from Iyer under sale deed dated 10.7.1942. At the relevant  time, one Shyamala Raju was the cultivating tenant. Iyengar (since  deceased) claimed that he had terminated the tenancy in 1948. On  termination of the tenancy disputes arose between Iyengar and Shyamala  Raju. Consequently, Suit No. 79/49 came to be instituted by Iyengar in the  court of Second Munsiff, Bangalore. The suit was instituted by Iyengar  against K.S. Setlur and Shyamala Raju stating that they had unauthorisedly  disturbed his possession. Suit No. 79/49 was for permanent injunction  restraining the defendants from interfering with the possession of Iyengar  (plaintiff).   In his defence Raju stated that he was in possession for eight  years; that he continued to be in possession; that Iyengar was collecting rents  arising from the suit properties as a constituted attorney of K.S. Setlur; that  on termination of the Power of Attorney, he paid rent to K.S. Setlur and,  therefore, he was in possession of the suit lands as a tenant under K.S. Setlur  and not under Iyengar (plaintiff). He (Raju) in his written statement stated  that he continued to remain in possession till 28.8.1950 (see p. 78 of the SLP  Paper Book). According to Iyengar, defendant No. 2 (Shyamala Raju) was  his tenant who turned hostile when he terminated the tenancy. According to  Iyengar, there was collusion between Shyamala Raju and K.S. Setlur to  defeat his rights. In the said suit, K.S. Setlur contended that he was the real  owner who had appointed Iyengar as his constituted attorney to collect rent  and profits. It was contended that the sale deed executed by Kalyana  Sundram Iyer was a benami transaction. He further alleged that in 1946 he  had cancelled the Power of Attorney in favour of Iyengar. He further alleged  that after 1946, Shyamala Raju had considered him as the landlord. Rent was  paid to him by Shyamala Raju. Raju had attorned in favour of K.S. Setlur.  Lease deeds were executed by Shyamala Raju in favour of K.S. Setlur. By  judgment dated 28.2.1951, delivered by the Munsiff Court in Suit No. 79/49,  it was held that the factum of Shyamala Raju being in possession of the suit  lands till 28.8.1950 stood proved, therefore, it was held that Raju was in  possession of the suit lands from 1946 onwards. It was further observed by

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the trial court that the disputed suit lands were not in de facto possession of  Iyengar. The trial court relied upon the revenue records of 1947-48 showing  cultivation of the lands by Shyamala Raju (see p. 91 of the SLP Paper  Book). The trial court did not believe the plaintiff (Iyengar) to say that he  had entered into possession in 1947. However, the trial court also observed  that the plaintiff had a conveyance in his favour from Kalyana Sundram Iyer  but the suit was for permanent injunction and since the plaintiff was not in  actual possession it was not possible to grant injunction restraining  Shyamala Raju from entering the lands. The trial court further held that  Shyamala Raju as a tenant had attorned in favour of K.S. Setlur. The trial  court, however, held that it was not in a position to give a clear-cut finding  as to whether Shyamala Raju was the tenant of Iyengar or of K.S. Setlur. In  this connection we find on page 95 of the SLP Paper Book the conclusion of  the trial court which states that, "the only inference that can be drawn is that  the second defendant (Shyamala Raju) is in possession and cultivation of the  suit disputed lands; whether he was tenant under the plaintiff (Iyengar) or  the first defendant (K.S. Setlur) is not  established." In the said judgment, the  trial court further observed that since the plaintiff had instituted a suit for  permanent injunction it was not necessary for the court to go into the  question of the benami nature of the sale deed executed by Kalyana  Sundram Iyer in favour of the plaintiff as well as the real ownership of the  suit lands. According to the trial court, it was not necessary to go into the  question of ownership except to the limited extent, namely, attornment of the  tenancy by Shyamala Raju in favour of K.S. Setlur and not in favour of  Iyenger (plaintiff). According to the trial court, since Shyamala Raju  (defendant no. 2) had continued to remain in possession till he was  prevented by an order of interim injunction which stood subsequently  vacated and since the plaintiff had failed to prove his actual possession, the  plaintiff was not entitled to an order of injunction.The question of title was  not gone into by the trial court. The question of title deed being benami was  not gone into by the trial court. In conclusion, the trial court observed that it  was open to the plaintiff to file suit on title and for possession. The trial  court observed that grant of injunction is a matter of discretion. The court  was, therefore, not inclined to grant permanent injunction in favour of the  plaintiff. At this stage, we may point out that the litigation has a chequered   history. We need not go into the various stages of this litigation except to  state that ultimately by judgment dated 14.12.1961 delivered by Additional  Civil Judge, Bangalore vide Regular Appeal No. 70/51 the suit filed by  Iyengar (plaintiff-appellant) ultimately stood dismissed. The judgment of the  trial court dated 28.2.1951 stood affirmed. The termination of tenancy of  Shyamala Raju was proved but there was no evidence that the plaintiff had  obtained actual possession from the ex-tenant on termination of tenancy. In  the result, the appeal stood dismissed on the ground that the appellant  (Iyengar) was not in possession of the suit lands on the date of filing of Suit  No. 79/49 (see p. 118 of the SLP Paper Book). The appeal of Iyengar stood  dismissed on 14.12.1961.         Coming to the second round of litigation, it may be stated that after  Shyamala Raju attorned in favour of K.S. Setlur, differences arose which led  to litigation between K.S. Setlur on one hand and Shyamala Raju on the  other hand. In the said litigation, Iyengar was not a party. In the said  litigation LRs. of Iyengar were not made party-defendants. Iyenger died on  6.12.1959. As stated above, disputes arose between K.S. Setlur and  Shyamala Raju around 1962. K.S. Setlur instituted Suit No. 89/63 for  declaration of his title and for permanent injunction. In the said suit K.S.  Setlur contended, that Iyengar was his constituted attorney; that Iyengar had  purchased the suit lands from Kalyana Sundram Iyer in 1942; that he had  terminated the Power of Attorney in favour of Iyengar in 1946; that  Shyamala Raju had attorned the tenancy in his favour in 1946 and that on  23.4.1962 Shyamala Raju had surrendered the suit lands to K.S. Setlur. In  the said suit, K.S. Setlur alleged, that Shyamala Raju was his ex-tenant; that  Raju had surrendered his possession on 23.4.1962, and after surrender he has  been interfering with his possession. It appears that Shyamala Raju had  purported to sell a portion of the suit lands which led Setlur to file Suit No.  89/63 saying that Shyamala Raju had no right to convey the suit lands or any  portion thereof. In the said suit, originally one of the issues framed by the

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trial court was whether K.S. Setlur was the owner of the suit lands and  whether he was in possession of the suit lands. Later on in appeal, the  question framed was whether K.S. Setlur had proved his possessory  title to  the suit lands. This question was answered in favour of K.S. Setlur in the  affirmative in RSA No. 545/73, which appeal stood disposed of by the High  Court vide judgment dated 14.8.1981 arising from Suit No. 89/63 filed by  K.S. Setlur. It is this judgment dated 14.8.1981 of the High Court which  constitutes the basis of the judgment of the trial court in the present  proceedings. Be that as it may, the High Court in its judgment in RSA No.  545/73 held that since Shyamala Raju had surrendered the suit lands in  favour of K.S. Setlur in 1962 it was obvious that K.S. Setlur was put in  possession through the intervention of the Tahsildar (see p. 126 of the SLP  Paper Book). According to the High Court, the tenancy of Shyamala Raju  stood terminated in 1946, that Setlur has been in possession since 1946, that  Suit No. 89/63 was filed by Setlur against Shyamala Raju in February, 1963  and, therefore, when Setlur had been in possession for more than 12 years  since 1946 he had the possessory title vested in him and his possession had  to be protected against the whole world except the true owner and, therefore,  according to the High Court, the trial court should not have dismissed the  suit of Setlur against Shyamala Raju bearing No. 89/63 but should have  given a declaration that Setlur had the possessory title for more than 12 years  and the trial court should have given declaration to that effect. Accordingly,  the High Court vide its judgment dated 14.8.1981 overruled the decision of  the trial court dismissing the suit filed by Setlur for declaration of his title.  Accordingly in the second round of litigation Setlur succeeded in obtaining a  declaration to the effect that he had possessory title in him. At this stage, it  may be noted that Iyengar (since deceased) never instituted a suit for  declaration of title.

       Before coming to the present suit, it may be pointed out that during  the intervening period between the above two proceedings, K.S. Setlur had  instituted Suit No. 94/56 against Iyengar for accounts and reconveyance  based on the sale deed of 1942 executed by Kalyan Sundram Iyer in favour  of Iyengar. In Suit No. 94/56, the question of possession or prescriptive title  was neither raised nor decided. Issue No. 12 in that suit related to the plea of  reconveyance. The said suit was dismissed on 10.11.1961 by the Additional  Civil Judge, Bangalore. In that suit, Setlur had claimed that he was the real  purchaser of the suit lands from Kalyan Sundram Iyer in 1941-42; that  Iyengar was his agent and was only a benamidar and, therefore, the purchase  by Iyengar was only for the benefit of K.S. Setlur and, therefore, Iyengar or  his LRs. were liable to reconvey the suit lands to the plaintiff (K.S. Setlur).  This story was not believed by the trial court. By the said judgment dated  10.11.1961, it was held that the case of Setlur was a fairy tale and that Setlur  had failed to prove that the suit lands were purchased from his funds or from  the funds of his joint family. In the circumstances, it was held by the trial  court that Setlur was not entitled to reconveyance and that he had failed to  prove that Iyengar was only a benamidar in the transaction of  1941-42 with  Kalyan Sundram Iyer. Accordingly, Suit No. 94/56 filed by Setlur against  Iyengar stood dismissed. In the said suit, Setlur had also sought a permanent  injunction restraining Iyengar/ his LRs. from interfering with his peaceful  possession and also for restraining Iyengar/ his LRs. from claiming  possession. According to the appellants herein, the prayer for injunction was  not pressed in view of the judgment in the earlier Suit No. 79/49 on the  question of possession between Iyengar and Setlur. However, according to  the LRs. of Iyengar, Setlur did not press for injunction in the said suit for  reconveyance as Setlur was dispossessed in 1953.

       To complete the chronology of events, K.S. Setlur (plaintiff) in the  present proceedings instituted, before the Additional City Civil Court,  Bangalore, Suit No. 3656/81. This suit was instituted on 11.12.1981. The  said suit was for a declaration that Setlur was the owner of the suit lands and  that the LRs. of Iyengar or their alienees  got no title from two sale deeds  dated 21.5.1970 and 7.9.1970 executed by LRs. of Iyengar in favour of  Narasimha Setty and others (defendants). In the said suit, Setlur once again  alleged that the suit lands originally belongs to Kalyana Sundram Iyer, they

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were cultivated by Shyamala Raju, in 1942 he had purchased the suit lands  through his constituted attorney (Iyengar), that the said deed of 1942 was  nominally in favour of Iyengar as his agent and that Shyamala Raju had  attorned in his favour in 1946. The above averment regarding the benami  nature of transaction was made by K.S. Setlur in the present suit despite the  dismissal of his Suit No. 94/56 against Iyengar. It was further submitted by  K.S. Setlur that vide judgment dated 14.8.1981, delivered by the High Court  in RSA No. 545/73, he has been declared to have acquired possessory title to  the suit lands as being in possession thereof between 1946 and 1963 and,  therefore, the LRs. of Iyengar had no right, title or interest to convey the suit  lands on 21.5.1970 and 7.9.1970 to Narasimha Setty and others. In the said  suit Setlur sought a declaration that he may be declared as an owner. He has  also prayed for possession of a portion of the properties allegedly occupied  by Setty and others and for permanent injunction (see p. 134 of the SLP  Paper Book). In the said suit, the LRs. of Iyengar as well as their successors- in-title (defendants) denied that the suit property was purchased by Iyengar  for K.S. Setlur as his Power of Attorney holder. They also denied the  allegation that K.S. Setlur had obtained possession at the time of attornment  of tenancy in 1946. The defendants contended that neither K.S. Setlur nor  Shyamala Raju were in possession in 1946 and that documents of allotment  were fictitious and never acted upon. They contended that they were in  exclusive, continuous and undisturbed physical possession and enjoying the  suit lands. The defendants asserted that Iyengar had purchased the suit lands  from Kalyana Sundram Iyer and they were in lawful and exclusive  possession of the suit lands. The defendants further stated that they were  unaware of the proceedings between K.S. Setlur and Shyamala Raju  culminating in the judgment and decree dated 14.8.1981 in RSA No. 545/73  and, in the circumstances, the said judgment of the High Court in RSA No.  545/73 was not binding on them. They denied of having taken possession  without authority of law in September/ November, 1970 as alleged by K.S.  Setlur (plaintiff). They also relied upon the revenue records from 1967 to  show that they were in possession of the suit lands. (see p. 140 of the SLP  Paper Book)

In the present suit, issues were framed by the trial court. One of the  main issues was whether the plaintiff (K.S. Setlur) has proved that the  defendants wrongly came into possession of the suit lands in 1970 and  whether the plaintiff was entitled to get back the possession from the  defendants herein. The said issue was answered in favour of the plaintiff by  the trial court. In the reasoning, the case of the plaintiff has been set out to  say that Suit No. 3656/81 (present suit) was filed for a different cause of  action than the earlier suit filed by the plaintiff (K.S. Setlur) for  reconveyance bearing Suit No. 94/56. That the present suit was filed by the  plaintiff in view of his dispossession in 1970. (see p. 153 of the SLP Paper  Book). According to the plaintiff, Iyenger had lost his suit for permanent  injunction. The appeal therefrom was ultimately disposed of on 14.12.1961.  Therefore, according to the plaintiff, up to 14.12.1961 Iyengar was not in  possession since in that suit the court came to the conclusion that Iyengar  was not in possession of the suit lands. That suit filed by Iyengar was Suit  No. 79/49 which came to be ultimately dismissed vide judgment dated  14.12.1961 delivered by Additional Civil Judge, Bangalore in RA No.  70/51. In the present suit, the plaintiff contended that he had entered into  settlement with Shyamala Raju in 1962-63; that on 23.4.1962 Shyamala  Raju had surrendered his possession and K.S. Setlur (plaintiff) was put in  possession, therefore, according to the plaintiff, he was in possession till  1962. (see p. 154 of the SLP Paper Book). In the present suit, on the above pleadings and evidence, the trial court  came to the conclusion that it is around 1970 that the plaintiff stood  dispossessed when the LRs. of Iyengar executed two sale deeds on  21.5.1970 and 7.9.1970 in favour of defendant No. 1 and others and since  the present Suit No. 3656/81 stood instituted on 11.12.1981 it was within  time of twelve years. According to the trial court, in view of the judgment of  the trial court in the suit instituted by Iyengar bearing No. 79/49, K.S. Setlur  was in possession of the suit property till December, 1961 and that the  defendants had wrongly entered into possession in April/ September, 1970.

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On the merits, the trial court held that since the High Court had declared vide  its judgment dated 14.8.1981 in RSA No. 545/73 that Setlur was in  possession from 1946 to 1963 he had become owner by adverse possession  and since Setlur was dispossessed in 1970 the present Suit No. 3656/81 was  well within limitation. According to the trial court, in view of the judgment  of the High Court dated 14.8.1981 in RSA No. 545/73, defendant No. 1,  Narsimha Setty, did not get a valid title in respect of the suit lands.  According to the trial court, in view of the said judgment of the High Court  dated 14.8.1981 in RSA No. 545/73 there was no merit in the contention  advanced on behalf of the defendants that the said judgment of the High  Court dated 14.8.1981 was not binding on them since the High Court had  declared that K.S. Setlur had possessory title over the suit lands and in view  of the said findings the defendants Narasimha Setty and others had failed to  prove that they had derived valid title to the said suit lands under the above  two sale deeds dated 21.5.1970 and 7.9.1970 from the LRs. of  Iyengar. The  trial court further observed that K.S. Setlur had instituted the said suit for  declaration and permanent injunction in 1981. That Suit was amended by  K.S. Setlur as plaintiff alleged that he was in possession in 1970 and that  subsequently the defendants had unlawfully entered into the suit lands. The  plaintiff accordingly amended the plaint. He sought possession. While  seeking possession, the plaintiff in his evidence stated that he was  dispossessed in 1970. According to the trial court, therefore, between 1946  and 1962-63, K.S. Setlur was in possession. He had possessory title. He was  in possession till 1970 when he was unlawfully dispossessed and in view of  the judgment of the High Court dated 14.8.1981 possessory title in the suit  lands had vested in K.S. Setlur (plaintiff). In the circumstances, the trial  court decreed the suit in favour of the plaintiff. The trial court declared that  Narsimha Setty did not derive title from the LRs. of Iyengar under the above  two sale deeds dated 21.5.1970 and 7.9.1970.  

Aggrieved by the said decision of the trial court dated 11.10.1996, the  matter was carried in appeal by the LRs. of Iyengar and their alienees to the  High Court under section 96 CPC vide RFA No. 672/96. By the impugned  judgment dated 22.3.1999, the appeal filed by the defendants stood allowed  and the impugned judgment of the trial court was set aside. Hence this civil  appeal.

As stated at the outset, the present civil appeal is filed by the LRs. of  the deceased K.S. Setlur, the original plaintiff. This civil appeal arises out of  the judgment of the High Court dated 22.3.1999 in RFA No. 672/96 filed  under section 96 CPC.  

It is urged on behalf of the appellants-plaintiff that the suit is based on  adverse possession. According to the appellants, Shyamala Raju was the  tenant of K.S. Setlur since deceased. According to the appellants, Shyamala  Raju had attorned the tenancy in 1946 in favour of K.S. Setlur. According to  the appellants, Shyamala Raju had surrendered possession to K.S. Setlur on  23.4.1962. According to the appellant, the High Court had categorically  declared vide judgment dated 14.8.1981 in RSA No. 545/73 that the  possessory title stood vested in K.S. Setlur. It is urged on behalf of the  appellants that Iyengar had also instituted a suit for permanent injunction  being Suit No. 79/49 in which it has been held that Iyengar was not in  possession of the suit lands but he was certainly entitled to file a separate  suit for declaration of his title. It was urged on behalf of the appellants that  despite liberty being given to Iyengar to institute a separate suit for  declaration on title, neither Iyengar nor his LRs. ever instituted a suit on title  and, therefore, the possessory title found by the High Court vide judgment  dated 14.8.1981 in favour of K.S. Setlur cannot be allowed to be reopened   in the present proceedings. It was urged on behalf of the appellants that the  trial court was right in coming to the conclusion that the possessory title  stood vested in K.S. Setlur. In this connection, reliance was placed on   judgment dated 14.8.1981 in RSA No. 545/73. According to the appellants  the LRs. of Iyengar, in the above circumstances, had lost their right to  recover possession. In this connection, the appellants placed reliance on  Section 27 of the Limitation Act, 1963. It was urged on behalf of the

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appellants that the impugned judgment is full of contradictions and  inconsistent findings. It was urged on behalf of the appellants that the matter  needs to be remitted back since there are fundamental errors in the impugned  judgment. On the other hand, it is urged on behalf of the respondents-defendants  that the trial court has failed to appreciate that the judgment of the High  Court dated 14.8.1981 in RSA No. 545/73 arose from proceedings/ Suit No.  89/63 filed by K.S. Setlur against his alleged tenant, Shyamala Raju. In that  suit, the LRs. of K.S. Setlur were not made party defendants. According to  the respondents, the present Suit No. 3656/81 filed by K.S. Setlur was a title  suit for a declaration that the LRs. of Iyengar had no right, title or interest in  the suit lands and that they had no right to transfer/ alienate the suit lands in  favour of Narsimha Setty and others. According to the respondents, the trial  court has erred in treating the present suit as a suit based on adverse  possession. According to the respondents, the suit was based on title, it was  subsequently amended falsely alleging that the plaintiffs were forcibly  dispossessed. According to the respondents, K.S. Setlur was in fact  dispossessed in 1953. According to the respondents, the trial court had erred  in holding that K.S. Setlur was dispossessed in 1969-70. According to the  respondents, the trial court had erred in holding that the tenant’s possession  during 1946 to 1963 was the plaintiff’s possession, which, according to the  respondents, was a fundamental error in the judgment of the trial court.  According to the respondents, the judgment of the High Court dated  14.8.1981 was between K.S. Setlur and Shyamala Raju. In that proceedings,  LRs. of Iyengar were not party defendants and, therefore, the judgment of  the High Court dated 14.8.1981 was not binding on the                      respondents. According to the respondents, the trial court had proceeded on  the basis of judgment dated 14.8.1981 which was not binding on the  respondents and even if it is assumed that the said judgment was binding on  the respondents even then the trial court had erred in holding that possession  of Shyamala Raju was the possession of Setlur in reckoning the period of  twelve years under Article 64 of the Limitation Act, 1963. It is urged on  behalf of the respondents that even in the suit for permanent injunction  instituted by Iyengar being Suit No. 79/49 the trial court has held that, even  though Shyamala Raju is found to be in possession, whether Shyamala Raju  was a tenant of Iyengar or K.S. Setlur was not fairly established and,  therefore, in none of the earlier proceedings it had been established that  Shyamala Raju was cultivating as a tenant of K.S. Setlur or as a tenant of  Iyengar. This question has never been conclusively decided and even if one  is to proceed on the basis that Shyamala Raju was a tenant of K.S. Setlur,  will the tenant’s possession be taken into account in calculating  the period  of twelve years under Article 64 of the Limitation Act, 1963? These  questions, according to the respondents, have not been answered by the trial  court. 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 owner  has and against whom a claim for adverse possession is made, therefore, the  plaintiff who makes a claim for adverse possession has to plead and prove  the date on and from which he claims to be in exclusive, continuous and  undisturbed 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 of law and fact. The facts found must be accepted, but the  conclusion drawn from them, namely, ouster or adverse possession is a  question of law and has to be considered by the court.  

As stated, this civil appeal arises from the judgment of the High Court  in RFA No. 672/96 filed by the original defendants under section 96 CPC.  The impugned judgment, to say the least, 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 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. To quote an example, one of the main questions  which arises for determination in this case is whether the tenant’s possession

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could be treated as possession of the owner in computation of the period of  twelve years under Article 64 of the Limitation Act, 1963. Similarly, as an  example, the impugned judgment does not answer the question as to whether  the decision of the High Court dated 14.8.1981 in RSA No. 545/73 was at all  binding on the LRs. of Iyengar/ their alienees. Similarly, the impugned  judgment does not consider the effect of the judgment dated 10.11.1961  rendered by the trial court in Suit No. 94/56 filed by K.S. Setlur against  Iyengar inter alia for reconveyance in which the court below did not accept  the contention of K.S. Setlur that the conveyance executed by Kalyana  Sundram Iyer in favour of Iyengar was a benami transaction. Similarly, the  impugned judgment has failed to consider the effect of the observations  made by the civil court in the suit filed by Iyengar for permanent injunction  bearing Suit No. 79/49 to the effect that though Shyamala Raju was in  possession and cultivation, whether he was a tenant under Iyengar or under  K.S. Setlur was not conclusively proved. Similarly, the impugned judgment  has not at all considered the effect of the Iyengar or his LRs. not filing a suit  on title despite being liberty given to them in the earlier Suit No. 79/49. In  the matter of adverse possession, the courts have to find out the plea taken  by the plaintiff in the plaint. In the plaint, the plaintiff who claims to be  owner by adverse possession has to plead actual possession. He has to plead  the period and the date from which he claims to be in possession. The  plaintiff has to plead and prove that his possession was continuous,  exclusive and undisturbed to the knowledge of the real owner of the land. He  has to show a hostile title. He has to communicate his hostility to the real  owner. None of these aspects have been considered by the High Court in its  impugned judgment. As stated above, the impugned judgment is under  section 96 CPC, it is not a judgment under section 100 CPC. As stated  above, adverse possession or ouster is an inference to be drawn from the  facts proved that work is of the first appellate court.  

It is true that the litigation is pending for the last several years,  however, we are in agreement with the contention advanced on behalf of the  appellants that there are serious errors in the impugned judgment which  warrants interference under Article 136 of the Constitution of India. We do  not wish to express any opinion on the merits of the matter. Reasoning, if  any, given hereinabove, should not be read as our conclusion on merits.

For the reasons indicated above, without expressing any opinion on  the merits of the case, we allow this civil appeal, set aside the impugned  judgment of the High Court dated 22.3.1999 in RFA No. 672/96 and we  remit the case back to the High Court to decide the said RFA No. 672/96     de novo in accordance with law.  

Since the above proceedings are pending from 1981 we request the  High Court to expeditiously hear and dispose of the appeal bearing No. RFA  672/96, preferably within three months from the receipt of this judgment.  Office is directed to send back records and proceedings to the High Court  expeditiously.