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Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.4125 OF 2009

[Arising out of SLP (C) No. 8405 of 2007]

L. N. Aswathama & Anr. … Appellant(s) Vs. P. Prakash … Respondent (s)

O R D E R

R. V. Raveendran, J. Leave granted.  

2.The appellants are the plaintiffs in a suit (OS No.2667/1987  on the file of the City Civil Court, Bangalore) filed against  the respondent, for declaration of title, possession, permanent  injunction and mesne profits in regard to site bearing no.19  (old  site  no.8),  situated  at  2nd Cross,  Subedarpalya,  Vyalikaval, Bangalore, measuring 30’ x 35’.

3. In brief, the case of the appellants – plaintiffs is as  follows: The suit property was purchased by one Hanumakka, from  the state government in the year 1940. She sold the said site  to  one  Bellary  Muniswamy  Pillai  under  a  sale  deed  dated  23.9.1940,  who  in  turn  sold  it  to  appellants’  father  Narayanaswamappa  under  sale  deed  dated  21.4.1950.  The  said

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Narayanaswamappa was registered as the owner of the said plot  in  the  village  records  and  was  paying  the  taxes  therefor.  Narayanaswamappa  suffered  a  stroke  and  after  a  prolonged  illness died in December 1966 leaving all his properties to his  sons  (plaintiffs)  under  his  will  dated  15.7.1956.  The  plaintiffs were unaware that their father owned the said plot,  as before and at the time of his death, they were prosecuting  their  studies  and  were  not  conversant  with  their  father’s  affairs. Their father had taken some loan from Canara Bank and  as security therefor had mortgaged the said site and other  properties.  The  Bank  obtained  a  decree  for  sale  of  the  mortgaged properties. The plaintiffs became aware of the suit  property only after they cleared the loan due to the Bank and  got back the various title deeds deposited with the Bank on  9.1.1984.  Thereafter,  they  took  steps  to  trace  the  suit  property and collect the necessary papers and found that the  defendant who had no right or title was in possession of the  said property by putting some temporary unauthorized structure  for tethering cattle. The appellants, therefore, filed the said  suit.  

4. The defendant-respondent resisted the suit by denying the  title of plaintiffs and claiming title to the suit property in  himself. According to him, the said property belonged to one  Channabasavanna;  that  after  his  death,  the  said  property

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devolved upon his wife Gowramma; that ever since 1962, he was  tethering his cows in the suit property with the consent of  Channabasavanna  and  after  the  death  of  Channabasavanna  continued as Gowramma's tenant; and that ultimately the said  Gowramma sold the schedule property (measuring 25’x 40’) to him  under a registered sale deed dated 18.11.1985. The defendant  also  contended  that  as  he  was  in  continuous  undisturbed  possession of the suit property for more than 30 years, he had  perfected his title by adverse possession. To support his claim  for  possession,  he  relied  on  the  decree  for  permanent  injunction  obtained  by  him  on  18.9.1979  in  OS  No.578/1978,  against  the  Bangalore  City  Corporation,  when  it  tried  to  disturb his possession in 1978. He contended that the suit  filed by the appellants was barred by limitation, as he had  perfected his title by adverse possession.   

5.The trial court framed appropriate issues, relating to title  of plaintiffs, possession, adverse possession, limitation and  the reliefs sought. After appreciating the oral and documentary  evidence, the trial court, by a detailed judgment, decreed the  suit on 2.1.2004. It found that the plaintiffs had established  their title to the suit property and that the defendant neither  established his title, nor established adverse possession for  more than 12 years before the suit. Consequently, the trial  court declared that plaintiffs had title to the suit property

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and  directed  the  defendant  to  deliver  up  possession  after  removing his materials. It also directed the defendant not to  cause  any  interference  to  plaintiffs’  possession,  after  delivering possession to plaintiffs.

6. The said judgment and decree passed by the trial court was  challenged by the defendant. A learned Single Judge of the  Karnataka High Court by judgment dated 12.9.2006, reversed the  trial court’s judgment and dismissed the suit. The High Court,  without much discussion, held that plaintiffs had failed to  prove that they had better title than the defendant and had  also failed to prove that the suit property in the possession  of defendant was the property to which they claimed title as  having  been  purchased  by  their  father  under  Ex.P2  dated  21.4.1950. The plaintiffs sought special leave of this Court,  to file an appeal against the said judgment. This court found  the judgment of the High Court was sketchy and cryptic, and  therefore issued limited notice to the respondent on 15.5.2007  to show cause why the matter should not be remanded to the High  Court  for  “writing  a  proper  judgment  after  considering  the  evidence on record.”  However, subsequently, both the parties  submitted that the remand will delay the ultimate decision and  requested this Court itself to consider the appeal on merits.  Accepting the said request, on 10.12.2007, this Court noted  that it will go into the merits of the matter also and for that

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purpose  called  for  the  records.  We  have  heard  the  learned  counsel.  

7.We find that the High Court did not formulate any points for  consideration, nor examine the relevant issues or evidence. It  reversed the well considered judgment of the trial court mainly  on the ground that katha number of the suit property, given in  two of the documents relied by the plaintiffs did not tally. It  overlooked  the  fact  that  the  trial  court  had  recorded  its  findings based on other evidence, by excluding the said two  documents from consideration. The High Court also ignored the  explanation for the discrepancy, offered by the plaintiffs.

8.The  first  appellate  court  can  re-appreciate  evidence  and  record  findings  different  from  those  recorded  by  the  trial  court. It is well settled that if the appraisal of evidence by  the  trial  court  suffers  from  material  irregularity,  as  for  example when its decision is based on mere conjectures and  surmises,  or  when  its  decision  relies  upon  inadmissible  evidence  or  ignores  material  evidence  or  when  it  draws  inferences and conclusions which do not naturally or logically  flow from the proved facts, the appellate court is bound to  interfere with the findings of the trial court. It is equally  well settled that where the trial court has considered the  entire evidence and recorded several material findings, the

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first appellate court would not reverse them on the basis of  conjectures  and  surmises  or  without  analyzing  the  relevant  evidence in entirety. As the final court of facts, if the first  appellate court is reversing the judgment of the trial court,  it is bound to independently consider the entire evidence. The  High Court has ignored these well settled principles. In these  peculiar circumstances, we have to examine the correctness of  the findings recorded by the High Court.

9. On the contentions urged, the following questions arises  for  consideration:  (i)  whether  plaintiffs  have  established  their  title  to  the  schedule  property  and  entitlement  to  possession; (ii) whether defendant has proved his title to the  schedule property; (iii) whether defendant has perfected his  title by adverse possession and therefore the suit is barred by  limitation.

Re : Question (i) 10.Plaintiff no.1, examined as PW1, stated that the suit plot  was  allotted  to  Hanumakka,  that  she  sold  it  to  Bellary  Muniswamy Pillai, who in turn, sold it to his father. The  relevant title documents were exhibited. Though the title/grant  certificate issued by the government in favour of Hanumakka was  not produced, the plaintiffs produced the payment challan dated  13.3.1940 issued by Bangalore Taluk Treasury (marked as Ex.P3)

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showing that Hanumakka had remitted Rs.16/6/6 towards the cost  of  a  residential  site  purchased  by  her  at  Subedarpalya,  Vyalikaval, Bangalore, in the Treasury on 13.3.1940. Ex.P2 is  the sale deed dated 5.9.1940 executed by Hanumakka in favour of  Bellary Muniswamy Pillai in regard to the schedule plot wherein  she recites that she had purchased the said site no.8 measuring  30’  x  35’  in  the  sites  laid  out  by  the  government  in  Subedarpalya. Ex.P1 is the sale deed dated 21.4.1950 executed  by  Bellary  Muniswamy  Pillai  conveying  the  said  plot  to  Narayanswammappa.  Ex.P4  is  the  endorsement  issued  by  the  Village Panchyat showing that Narayanaswamappa was the Kathedar  of the suit property (though it mentions only the khata number  and not the site number). Ex.P18 is the mortgage decree dated  3.2.1965 passed by the Principal Civil Judge, Bangalore city in  O.S. No. 8/1965 filed by Canara Bank against Narayanaswamappa  which  shows  the  schedule  property  as  one  of  the  mortgaged  properties. Ex.P14 is the will under which Narayanaswamappa  bequeathed his properties to his two sons (plaintiffs). These  documents clearly make out the title of the plaintiffs to the  schedule property and also establish that plaintiffs’ father  had exercised rights of ownership thereon by mortgaging the  said property in favour of Canara Bank.

11.The next question  is whether plaintiffs have established  that site no.8 in regard to which they produced the documents

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of title and established the title, is the suit property in the  occupation of defendant. The case of the plaintiffs is that the  schedule property is situated in a small layout in Subedarpalya  formed  by  the  government,  shown  in  the  sketch  Ex.P15.  The  defendant has admitted that the property adjoining the suit  property to the East, belonged to one Perumal. The plaintiffs  have exhibited the sale deed dated 26.9.1955 under which said  Perumal purchased the adjoining site no.9 as also the sale deed  dated 6.11.1978 under which Perumal sold it to K. Muddukrishna,  as Exs.P11 and P12. These documents (Ex.P11 and P12) show that  plot no.9 in the layout formed by the government was purchased  by one R. Sanniyappa Naidu in an auction conducted by the  government and he sold it to Perumal under sale deed dated  26.9.1955 who in turn sold it to K. Muddukrishna under deed  dated 6.11.1978. The measurements of the said site no.9 are  shown as 30 ft. x 35 ft. These documents also show that site  No.8 (suit property) belonging to Narayanaswamappa is situated  to  the  west  of  the  said  site  no.9.  The  boundaries  and  measurements  in  Ex.P11  and  P12  are  in  consonance  with  the  boundaries of suit property in the title deeds of plaintiffs  (Ex.P1 and P2) and the boundaries and measurements in the plan  produced by the plaintiff as per Ex.P15. The plaintiffs have  thus  established  the  identity  of  the  suit  property  with  reference to the sketch (Ex.P15) and the sale deeds (Ex.P11  dated 26.9.1955 and Ex.P12 dated 6.11.1978) relating to the

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plot no. 9 adjacent to the suit property, situated to the east  of the suit property. We find that the trial court has also by  detailed reference to the documents and boundaries identified  the property purchased by Narayanaswammppa under Ex.P1 dated  21.4.1950 as the suit property in the wrongful possession of  the defendant.

12.The High Court has neither discussed the evidence relating  to  identity  of  the  suit  property  nor  held  that  the  trial  court’s finding that plaintiffs have established their title  and identity of the suit property was erroneous. The High Court  has rejected the entire case of the plaintiffs merely on the  ground that in the mortgage suit of the Bank, the Katha number  of the property is wrongly given. The plaintiffs have offered a  simple  and  acceptable  explanation  by  pointing  out  that  in  Ex.P17 and P18 (preliminary and final decree in the mortgage  suit of the Bank), the katha numbers of items (3) and (4) of  the schedule had been interchanged.  Item (4) is site no.8 and  the katha number has been mentioned as 95 instead of 53. For  item (3), Katha number is mentioned as 53 instead of 95. The  correct katha number is 53 as is evident from Ex.P4 and P5  issued by the village punchayat.

13. In law, possession follows title. The plaintiffs having  established title to the suit property, will be entitled to

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decree for possession, unless their right to the suit property  was  extinguished,  by  reason  of  defendant  being  in  adverse  possession for a period of twelve years prior to the suit.

Re: Question (ii)

14. The defendant has claimed title to the suit property. He,  however,  contends  that  the  suit  property  in  his  occupation  bears the site no.18A and measures 25’ x 40’ and that the said  plot was sold to him by Gowramma on 18.11.1985. The defendant  contends that the suit property earlier belonged to Gowramma’s  husband Channabasavanna and on his death, Gowramma became the  owner thereof; and that he had taken the said property on rent  from in or about the year 1962 and paying rents to Gowramma,  till he purchased it from her on 18.11.1985.  Defendant has not  produced any document to show the title of Gowramma or her  husband, though the sale deed dated 18.11.1985 refers to the  earlier title deeds. The defendant merely stated that the sale  deed dated 18.11.1985 recited about the previous title. The  sale deed dated 18.11.1985 (a certified copy which is produced  as Ex.D1) said to have been executed by Gowramma, no doubt  purports to convey site No.18A measuring 25’ x 40’ to the  defendant. The said sale deed recites that the vendor Gowramma  was appointed as guardian of her husband Channabasavanna who  was a lunatic; that he had purchased the property, of which  what was being sold by her to defendant, was a part, under

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registered sale deed dated 28.8.1959 (registered as Document  No.4725, Book I, Vol.1821, pages 200-204, in the office of the  Sub-Registrar, Bangalore North Taluk), and that by virtue of an  order (certified copy of which was dated 20.10.1964) made in  Misc.C. No.444/1964 by the II Addl. District Judge, Bangalore,  she became the owner of the suit property. The defendant, as  noticed above, significantly did not produce the previous title  deed dated 28.8.1959 or the said order of the District court in  Misc. C.No.444/1964.   

15. The plaintiffs have produced and marked as Ex. P21 and  Ex.P22, certified copies of the petition and order in Misc.  C.No.444/1964, filed by Gowramma praying for grant of letters  of administration. They show that Gowramma sought letters of  administration in regard to two properties left by her husband  and  that  by  order  dated  19.10.1964  the  court  granted  such  relief. The two properties were (i) premises no.9, Fifth cross,  Malleswaram,  Bangalore  (earlier  site  no.8,  in  Sy.  No.9  of  Kayamgutta Ranganathapura, Kasaba Hobli, Bangalore North Taluk)  and  (ii)  Premises  no.17,  Subedarpalya  Vyalikaval,  Bangalore  North Taluk measuring 30’ x 35’  bounded on the East by site  no.16,  belonging  to  Nanjappa  Reddy;  West  by  site  no.18,  belonging to Raghunath Singh, North and South by Government  road. Admittedly neither of them is the suit property. The  first  is  in  Malleswaram.  The  second  is  of  course  in

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Subedarpalya.  What  Gowramma  inherited  from  her  husband  and  situated in Subedarpalya was thus site no.17, measuring 30’ x  35’ which was situated three sites away on the south of suit  site no.8 as is evident from Ex.P15. Defendant did not produce  the previous sale deed dated 28.8.1959, as it would apparently  show that Gowramma was not the owner of  suit property (site  No.8), but some other property in the same area, that is plot  no.17.  Thus Gowramma did not inherit site no.8 (corresponding  to municipal no.19 and subsequently referred to as no.18/1) of  Subedarpalya, Vyalikaval which is the suit property from her  husband, nor did she secure letters of administration in regard  to the said site. If Gowramma purported to sell a portion of  what was acquired by her under deed dated 28.8.1959 and the  order in Misc.C.444/1964, than it would mean that what was sold  to defendant was a portion of site No.17 measuring 25’ x 40’  and  not  the  suit  property.   Thus  Ex.D1  dated  18.11.1985  produced by the defendant does not relate to suit property  (site no.8). Merely by changing the site number as 18/A, and  securing  a  sale  deed  from  Gowramma,  defendant  cannot  claim  title  to  suit  property,  as  Gowramma  never  owned  the  suit  property. It is also of some interest to note that the sale  deed dated 18.11.1985 recites that Gowramma had already sold  portions of the plot (acquired under deed dated 28.8.1959 and  order in Misc.C No.444/1964) to others. If so, it is doubtful  anything remained in site no.17 for sale. But it is unnecessary

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to examine that aspect as we are not concerned with site no.17  at all in this case.  The sale deed dated 18.11.1985 alleged to  have been executed by Gowramma (Ex.D1 is a certified copy) was  clearly a fabricated document in regard to an non-existing site  obviously with the intention of laying claim over the suit  property. The said deed did not convey any right, title or  interest to the defendant in respect of the suit property.

Re : Question (iii) 16. The  plaintiffs  contended  that  the  plea  of  adverse  possession put forth by the defendant should fail in view of  the inconsistent stands taken by the defendant. It is pointed  out that the defendant had specifically contended that he was  the  tenant  of  the  schedule  property  from  1962  until  he  purchased the property on 18.11.1985. According to plaintiffs,  this  was  a  case  of  permissive  possession  and  not  adverse  possession. It is submitted that the defendant having put forth  a case of permissive possession, cannot put forth a plea of  adverse possession. It was submitted that even assuming that  there was a long and continuous possession for more than 12  years, that by itself would not constitute adverse possession  if it was either permissive possession or possession without  animus  possidendi.  According  to  them,  the  two  pleas  being  mutually inconsistent, the latter plea could not even begin to  operate until the former was renounced.  Reliance was placed to

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the following observations of this Court in  Mohan Lal (Dead  through LRs) vs. Mirza Abdul Gaffar – 1996 (1) SCC 639, made  while considering a case where the defendant raised the pleas  of permissive possession and adverse possession :   

“As regards the first plea, it is inconsistent with the  second  plea.  Having  come  into  possession  under  the  (sale) agreement, he must disclaim his right thereunder  and plead and prove assertion of his independent hostile  adverse possession to the knowledge of the transferor or  his successor in title or interest  and that the latter  had  acquiesced  to  his  illegal  possession  during  the  entire period of 12 years, i.e., up to completing the  period his title by prescription  nec vi, nec clam, nec  precario (not  by  violence,  not  by  stealth,  not  by  permission). Since the appellant’s claim is founded on  section 53A (of Transfer of Property Act, 1882), it goes  without  saying  that  he  admits  by  implication  that  he  came  into  possession  of  land  lawfully  under  the  agreement  and  continued  to  remain  in  possession  till  date of the suit. Thereby the plea of adverse possession  is not available to the appellant.”   

[emphasis supplied]

17.The legal position is no doubt well settled. To establish a  claim of title by prescription, that is adverse possession for  12  years  or  more,  the  possession  of  the  claimant  must  be  physical/actual, exclusive, open, uninterrupted, notorious and  hostile to the true owner for a period exceeding twelve years.  It is also well settled that long and continuous possession by  itself would not constitute adverse possession if it was either  permissive possession or possession without animus possidendi.  The pleas based on title and adverse possession are mutually  inconsistent and the latter does not begin to operate until the  former is renounced. Unless the person possessing the property  has the requisite animus to possess the property hostile to the

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title of the true owner, the period for prescription will not  commence. (Vide : Periasami vs. P. Periathambi – 1995 (6) SCC  523, Md. Mohammad Ali (dead) by LRs. vs. Jagdish Kalita  - 2004  (1) SCC 271 and  P.T. Munichikkanna Reddy vs. Revamma – 2007  (6) SCC 59).

18.We are however of the view that the decision in  Mohan Lal  (supra) relied on by the plaintiffs is inapplicable, as the  defendant therein had pleaded that he was in possession, having  obtained possession in part performance of a sale agreement. As  the defendant therein admitted that he came into possession  lawfully under an agreement of sale and continued to remain in  such possession, there was no adverse possession. This case is  different, as the defendant did not contend that he entered  possession under or through the plaintiffs. His case was that  he was in possession as a tenant under Gowramma from 1962 and  he became the owner by purchasing the plot from Gowramma in  1985. He alternatively contended that if Gowramma did not have  title and consequently his claim based on title was rejected,  then having regard to the fact that he had been in possession  by setting up title in Gowramma and later in himself, his  possession was hostile to the true owner; and if he was able to  make out such hostile possession continued for more than 12  years, he could claim to have perfected his title by adverse  possession. There is considerable force in the contention of

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defendant provided he is able to establish adverse possession  for  more  than  12  years.  When  a  person  is  in  possession  asserting  to be the owner, even  if  he  fails  to   establish  his title, his  possession  would  still  be adverse to the  true  owner.  Therefore,  the  two  pleas  put   forth   by the  defendant  in  this  case  are  not  inconsistent  pleas  but  alternative pleas available on the same facts. Therefore, the  contention  of  the  plaintiffs  that  the  plea  of  adverse  possession is not available to defendant is rejected.

19. But then the question is if the defendant did not make out  his title, whether adverse possession of defendant for a period  of more than 12 years prior to the suit has been established?  The specific case of defendant was that he was the tenant of  Gowramma in regard to the schedule property (vacant site) from  the year 1962, initially on a monthly rent of Rs.30 which was  later increased to Rs.40/- and again to Rs. 60/- and that he  continued as such tenant till 18.11.1985 when he purchased the  suit property from Gowramma. We have already held that Gowramma  did not own the suit property, but apparently owned a property  three or four sites away from suit property. We have also held  that no title was conveyed to defendant under the deed dated  18.11.1985. The only material produced by defendant to show  that he was in possession from 1962, is the recital in the sale  deed dated 18.11.1985. As the sale deed dated 18.11.1985 is

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established to be a bogus and false document, the claim of  defendant that he was in occupation of the suit site as a  tenant from 1962, is liable to be rejected.   

20.The only other evidence produced by defendant to prove his  possession is the judgment dated 18.9.1979 in the suit filed by  him against the Corporation of City of Bangalore in the year  1978,  when  it  proposed  to  take  action  against  him  for  unauthorized construction in the schedule site. Here again, the  defendant did not produce either the plaint or the judgment.  The plaintiffs produced and marked the judgment as Ex.P13. The  said judgment shows that the defendant did not claim that the  property belonged to Gowramma or that he was the tenant of  Gowramma in the said site. On the other hand, he merely alleged  that he was in possession of plot No. 18A. The Bangalore City  Corporation denied his ownership and possession and contended  that he had no right, title, or interest in the suit property  and pointed out that he had carefully avoided any reference to  the source of his title or payment of property taxes in regard  to suit property and that there was no allegation that the  katha stood in his name. It also specifically contended that  defendant was living in the adjoining premises as tenant and  that he had recently constructed a cow-shed unauthorisedly in  the  suit  property  with  bamboos,  zine  sheets  and  thatched  leaves. The court by its judgment dated 18.9.1979 held that

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defendant herein was not the owner of the property. It also  held that he had not perfected his title by adverse possession.  But as defendant herein was found to be in possession of the  plot, the court granted an injunction against the Bangalore  City Corporation, on the ground that even a trespasser was  entitled to protect his possession. The description given by  defendant in regard to suit property is of some interest and is  extracted below : “Property adjoining site No.18 (numbered as  18/A for the sake of convenience) situated in First Street,  Subedarpalya, Yeshwanthpur, Bangalore 22, measuring 35 feet by  25 feet bounded on the East by first street, west by House of  Victor Julius, North by House of Hanumappa, and south by House  Venkatappa.”

21. Plaintiffs examined Victor Julius, (who is described by  defendant as the western neighbour in the said injunction suit)  as PW2. He stated that he is  the husband of Suwarna who owns  site no.14 situated to the South of site no.8 divided by a  conservancy lane. He stated that the defendant was a tenant  under one Muddukrishna in a portion of one of the three houses  situated  in  the  adjoining  site  no.9  known  as  Perumal’s  compound. He has further stated that about 10 years prior to  the date of his evidence (19.9.2002), the defendant put a house  in the back portion of site no.8. This clearly shows that the  defendant mixed up the description of two properties to create

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an imaginary property. The description in the injunction suit  shows that there was no site bearing the number ‘18A’ and that  number was given by defendant only for convenience. It also  describes the plot as plot next to plot 18. Plot next to plot  No.18, would refer to plot 17 belonging to Gowramma and not  plot No.8 which is the suit property. It is also evident from  the evidence of Victor Julius that plot No.8 (suit property)  was  to  the  North  of  his  property  with  a  conservancy  road  separating the two properties. The schedule in the injunction  suit  filed  by  defendant  against  Corporation  of  City  of  Bangalore does not fit the suit property at all.

22.Plaintiffs also examined one Muniappa as PW3 who states that  he has been staying in the house opposite to site no.8 (on the  Northern side) since 1950 and that one Perumal was the owner of  the adjoining site no.9 wherein he had constructed three small  houses;  that  Perumal  had  sold  the  property  no.9  to  Muddukrishna; and that defendant was staying in one of the  houses no.9 as a tenant of Muddukrishna. He also stated that  the defendant put up a small shed in a part of site no.8 which  was lying vacant, to tether his cows and subsequently, in the  year 1992 (during the pendency of the suit) constructed a house  in site no.8. He has also stated that Gowramma was earlier  living in the same locality four houses away.

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23. The judgment in O.S. No.578/1978 (Ex.P13) relied upon by  defendant  and  the  evidence  of  PW2  and  PW3  would  clearly  establish that the defendant was residing in the property of  Muddukrishna  (site  No.9)  adjoining  the  suit  property  as  a  tenant,  and  that  he  had  unauthorizedly  put  up  a  temporary  cattle shed in the suit property in or about the year 1978.  This may at best prove adverse possession of suit property by  defendant from 1978.  

24. The defendant has not produced any evidence to show that  he was in possession of the suit property for a period of 12  years  prior  to  the  filing  of  the  suit  by  plaintiff  on  24.6.1987.  Neither  the  correspondence  between  defendant  and  City Survey Department subsequent to the suit nor the katha,  sanction of plan and tax receipts of the years 1991, 1992, and  2002 (all subsequent to the suit), are of any relevance. The  defendant  did  not  examine  either  Gowramma  or  any  other  neighbour to show that he was in continuous possession of the  suit property for more than 12 years. Except his vague and  interested statement which is proved to be false, there is no  evidence to show that he was in possession for a period of 12  years prior to the suit of plaintiffs.  

25. When defendant claimed title and that was proved to be

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false or fabricated, then the burden is heavy upon him to prove  actual, exclusive, open, uninterrupted possession for 12 years.  In this case we have already held that he did not make out such  possession for 12 years prior to the suit. While the plaintiffs  have made out a clear and absolute title of the property, the  

defendant  has  not  been able  to  make  out  title  or  adverse  possession for more than 12 years. The High Court did not  examine  any  of  these  aspects  and  by  a  cursory  judgment,  reversed  the  well  considered  judgment  of  the  trial  court.  Therefore the decision of High Court cannot be sustained.

26. We therefore allow this appeal with costs, set aside the  judgment and decree of the High Court and restore the judgment  and decree passed by the trial court.  

__________________J [R. V. Raveendran]

__________________J [Harjit Singh Bedi]

New Delhi; April 21, 2009.