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Court has asked the Karnataka High Court to proceed to decide the Regular Second Appeal in accordance with the law, except for the issue of amendment of the plaint being barred by the limitation, all other issues are left open to be decided
The Supreme Court has said that a plaintiff is not required to claim declaration of title in a suit simpliciter for a perpetual injunction against a defendant who pleaded for perfection of the title by adverse possession.
"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," a bench of Justices Abhay S Oka and Pankaj Mithal said.
Acting on a plea filed by KM Krishna Reddy, original plaintiff, the court partly allowed the appeal and set aside the HC's judgement of February 10, 2010.
The bench further pointed out that only two questions were required to be dealt with, i e, first whether the appellant had established that he was in possession of the suit property on the date of the institution of the suit. If the appellant fails to prove this issue, the suit will be liable to be dismissed. The burden was on the respondents to prove their plea of adverse possession, as there was a counter-claim seeking a declaration of ownership based on adverse possession. The counter-claim is in the nature of a cross-suit.
However, the High Court has decided only one issue, whether the amendment was barred by limitation.
"As the High Court has not considered the merits of the suit and counter-claim, we propose to remand the regular second appeal to the High Court," the bench said. It also restored the regular second appeal to the file of the High Court.
"We direct the High Court to frame additional substantial questions of law by exercising power under the proviso of sub-Section (5) of Section 100 of the Code of Civil Procedure, 1908. The High Court shall proceed to decide the Regular Second Appeal in accordance with the law. Except for the issue of amendment of the plaint being barred by the limitation, all other issues are left open to be decided by the High Court," the bench said.
Karnataka High Court has also been asked to give necessary out-of-turn priority to the disposal of the regular second appeal. "Normally, this court should never fix a time-bound schedule for disposal of a case pending before High Courts, which are Constitutional Courts. But, in this case, the Regular Second Appeal is of 2007," the order adds.
It was found that the respondents admitted the ownership of the appellant’s father through whom the appellant claims 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. Therefore, there was no dispute about the appellant's title as pleaded in the suit. The issue was whether the plea of adverse possession defeated that title. The burden of proving the plea of adverse possession was on the respondents. The burden on the appellant was to prove his possession on the date of the suit," the court said.
Case Title: SRI. K.M. KRISHNA REDDY vs. SRI. VINOD REDDY & ANR
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