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Onus To Prove Adverse Possession Shifts To Defendants,

Once Title Is Upheld In Plaintiff's Favour In Earlier Suit
Between Same Parties : Supreme Court
Pallavi Mishra
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2 May 2023 7:11 PM

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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.

Click Here To Read/Download Judgment (https://www.livelaw.in/pdf_upload/381-prasanna-v-mudegowda-27-

apr-2023-471600.pdf)

Tags Supreme Court (https://www.livelaw.in/tags/supreme-court)

Justice Aravind Kumar (https://www.livelaw.in/tags/justice-aravind-kumar)

Justice Rajesh Bindal (https://www.livelaw.in/tags/justice-rajesh-bindal)

Adverse Possession (https://www.livelaw.in/tags/adverse-possession)

Limitation Act (https://www.livelaw.in/tags/limitation-act)