appreciation of evidence / finding regarding possession = The net result is that KS is not the owner of the property, but it is equally true that from 1963, he had been shown to be in possession pursuant to the application (Exhibit P­10) and the order (Exhibit P­11) of the Tehsildar. This possession was adverse to the true owner. It was openly hostile to the claim of HR and his legal representatives and they never filed a suit for possession of the property. Once it is held that KS was in possession of the suit property, the consequence will be that he is in adverse possession. The legal representatives of HR have failed to show­ how they obtained possession from HR. Even, according to the case of HR, it was AR who was in possession as a tenant. AR surrendered part of the land to KS and not to HR. No doubt, in later proceedings in which KS was not a party, AR made a statement that he was never a tenant in the suit, but such statement flies in the face of the pleadings of AR in O.S. No.79 of 1949 filed by HR and the decisions in those proceedings. Furthermore, AR had executed a registered salecum­release deed jointly with KS and this was ratified by the Tehsildar. 11 15. In view of the aforesaid facts, it is apparent that the legal heirs of HR miserably failed to prove how they came into possession of the suit property. Therefore, we are clearly of the view that the High Court gravely erred in coming to the conclusion that KS was not in possession of the suit property when the suit was filed. He may have been dispossessed after filing of the suit but that has no effect on the case. plea of adverse possession can be used both as an offence and as a defence i.e. both as sword and as a shield. Thus, there can be no manner of dispute that a plaintiff can claim title to the property based on adverse possession.

NON­REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6111 OF 2009
KRISHNAMURTHY S. SETLUR (D) BY LRS. …APPELLANT(S)
VERSUS
O. V. NARASIMHA SETTY (D) BY LRS. …RESPONDENT(S)
J U D G E M E N T
Deepak Gupta, J.
By this judgment we hope to bring quietus to a dispute
which has its genesis to facts prior to the independence of the
country. The parties through their predecessors have been
litigating for more than 70 years.

  1. Krishnamurthy S. Setlur (hereinafter referred to as ‘KS’),
    was the predecessor­in­interest of the appellants. He was
    obviously a very rich landlord. H.R. Narayana Iyengar
    (hereinafter referred to as ‘HR’), was the predecessor­in­interest
    of the contesting respondents. It appears that HR used to
    1
    manage the properties of KS. KS had executed a general power of
    attorney in favour of HR to manage the properties and he used to
    manage and sell properties on behalf of KS.
  2. In 1942 KS, through his general power of attorney HR,
    purchased the suit properties from the then land owner. On
    22.10.1946, KS revoked the power of attorney. In 1947, HR filed
    a suit for recovery of certain amounts which he alleged that he
    had incurred to recover the property of KS. In 1948, KS filed a
    suit against HR seeking return of some documents. These two
    suits had no direct bearing on the present case, but have been
    referred to bring out the history of the dispute. In 1949, KS
    along with his brother, filed a suit against HR seeking a
    declaration that the suit property belonged to the plaintiff. It was
    urged that though the property had been purchased by KS with
    his own money, the sale deed was effected in favour of HR, who
    was nothing more than a benamidar of KS. This suit which was
    originally the Suit No.101/1948­1949 was later numbered as
    O.S. 94 of 1956.
  3. About the same time, HR filed a suit being O.S. No.79 of
    1949 seeking injunction against KS and the tenant K.
    2
    Achyuthananatha Raju (hereinafter referred to as ‘AR’). The
    stand of HR was that earlier he was in possession of the suit land
    as a lessee and later vide sale deed executed in 1942, he had
    taken possession of the suit land and he sought an injunction
    restraining KS and AR from interfering in the suit land. KS took
    the plea that he was the true owner of the property and AR was
    the tenant. The trial court dismissed the suit filed by HR holding
    that HR was not in possession of the suit property. The trial
    court held that AR was a tenant under KS. However, the trial
    court also observed that HR could file a suit for possession. This
    judgment was delivered on 28.02.1951. The trial court
    specifically held that it could not go into the issue of title in the
    said suit. HR filed an appeal against the said judgment. In the
    first round, the appeal was allowed by the first appellate court
    but on an appeal filed by KS in the High Court (being RSA No.338
    of 1953), the High Court vide judgment dated 07.08.1959,
    remanded the matter to the first appellate court for re­hearing.
    During the pendency of the appeal after remand, HR died and his
    legal representatives were brought on record. After remand, the
    appeal filed by HR was again dismissed by the first appellate
    court confirming the judgment and decree of the trial court and
    3
    AR was held to be tenant in possession of the suit land.
    Admittedly, no appeal against the said judgment has been filed
    and the same had become final.
  4. According to KS and the appellants before us, since the trial
    court had held that KS was in constructive possession of the
    property through his tenant AR, confirmation of this decree
    meant that the Appellate Court had affirmed this finding.
    According to them, this finding is binding on all the parties.
  5. During the pendency of the case filed by HR, as pointed out
    above, KS had also filed a suit which was later renumbered O.S.
    94 of 1956. This suit was dismissed on 10.11.1961. It was held
    that KS had failed to prove that HR had purchased the properties
    as benamidar of KS. His claim for ownership to the properties
    was rejected. Appeal was filed by KS against this judgment
    which was dismissed in default on 27.07.1966 and the same
    attained finality.
  6. According to KS, on 16.04.1962, he entered into a
    settlement with his tenant AR with regard to the tenancy rights
    in respect of the suit land. Accordingly, a registered sale­cumrelease deed was jointly executed by KS and AR. In terms of the
    4
    settlement, AR retained an area of 6 acres 25 guntas in Survey
    No. 85 (Part) and the balance land was released in favour of KS.
    An application for approval of the settlement was filed before the
    Tehsildar, Bangalore (Exhibit P­10) and the Tehsildar passed an
    order (Exhibit P­11) accepting the application and the surrender
    of tenancy rights by AR in favour of KS. He permitted KS to take
    possession of the suit property from AR. According to KS, he had
    been in possession of the suit property and he also applied to the
    revenue authorities for entering his name in the revenue record
    and in February, 1963 his name was entered in the revenue
    record. Further, according to KS, despite the settlement, AR
    again tried to interfere in the possession of KS and AR illegally
    sold some portion of the land which he had surrendered, to some
    other persons compelling KS to file Suit No.O.S. 89 of 1963
    against AR. In this suit HR or his legal heirs were not made
    parties. This suit was dismissed on 20.07.1967 by the trial
    court. Appeal filed by KS was dismissed by the first appellate
    court on 31.07.1970. RSA No.545 of 1973 was filed by KS. This
    appeal was allowed and vide judgment (Exhibit P­14) dated
    14.08.1981, KS was held to be the owner in possession of the
    5
    property and a decree for injunction was granted against AR and
    the other defendants.
  7. Thereafter, KS leased out some portion of the suit property
    to a builder for carrying out quarrying operations. At this stage,
    the legal heirs of HR lodged a complaint that they were the true
    owners of the property. Thereafter, KS was compelled to file O.S.
    No. 3656 of 1981 out of which the present proceedings arise. In
    this suit KS claimed that legal heirs of HR were illegally trying to
    dispossess the plaintiff­appellant and he sought a decree for
    permanent injunction. In this suit while, on the one hand, KS
    claimed ownership on the ground that HR was a benamidar, but
    in the alternative, he claimed that having been in possession of
    the land and having claimed ownership thereof in a manner
    hostile to the true owner, his possession had fructified into title
    by way of adverse possession. Subsequently, the suit was
    amended and it was pleaded that KS had been forcibly
    dispossessed from the land. This suit was decreed by the trial
    court on 11.10.1996. The trial court held that the plaintiffappellant was in uninterrupted and peaceful possession of the
    property for over 12 years and had perfected his titled by adverse
    6
    possession and it was further held that he was wrongly
    dispossessed by the defendants during the pendency of the suit
    and, hence, decreed the suit in favour of KS. Appeal was filed by
    legal heirs of HR in the High Court of Karnataka at Bangalore,
    which was allowed on 22.03.1999. Thereafter, KS filed a special
    leave petition in this Court. After leave was granted, this was
    registered as Civil Appeal No.5079 of 2000. In the said appeal,
    judgment of the High Court was set aside and the matter was
    remanded to the High Court for fresh consideration in
    accordance with law. After remand, the High Court again allowed
    the appeal vide the impugned judgment dated 28.09.2007,
    leading to this appeal.
  8. Some ancillary facts also need to be noted. Sometime, in
    the year 1982 AR filed an application before the land tribunal
    claiming occupancy rights in the suit land. KS was not
    impleaded as a party in the suit even though his name was
    recorded in the revenue record. The names of HR and his
    successors were mentioned as owners. Surprisingly, in this
    petition, AR made a statement before the tribunal that he had
    never been a tenant in the suit property and had no document to
    7
    prove his tenancy. KS filed an application for impleadment
    before the tribunal, which was rejected. It appears that the
    tribunal held that the land had not vested in the Government and
    is not tenanted land and rejected the application filed by KS. It
    appears that after this the name of KS which had been shown in
    revenue record from 1963 to 1981, was struck off without any
    notice to him. Thereafter, KS filed an application for recording
    his name as owner in the revenue record and the Deputy
    Tehsildar vide order dated 27.05.1993 directed that the name of
    KS be entered in the revenue record. The legal heirs of HR were
    parties to these proceedings and they filed an appeal before the
    Assistant Commissioner, which appeal was dismissed on
    31.12.1998.
  9. From a perusal of the above facts, it is apparent that the
    claim of KS that he was the true owner of the land had been
    negatived at all stages. Therefore, HR was, no doubt, the owner
    of the land. The issues are – whether KS was in possession of the
    land, was his possession hostile to the true owner and has this
    adverse possession matured into ownership?
    8
  10. In O. S. No. 79 of 1949 filed by HR, the trial court held that
    AR was a tenant under KS. This judgment was upheld in appeal.
    It is true that the Appellate Court did not clearly uphold the
    findings of the trial court that AR was a tenant under KS, the fact
    of the matter is that HR was not held to be a tenant of KS. On
    the other hand, the suit filed by KS claiming that he was the true
    owner, which was originally numbered as O.S. No.101 of 1948­
    1949 and later numbered as O. S. No.94 of 1956, was dismissed
    and this has attained finality.
  11. AR and KS entered into an agreement wherein AR retained
    some portion of the land and released the balance land in favour
    of KS. The surrender of tenancy rights was approved by the
    competent authority and KS was permitted to take possession of
    the suit property. The property was duly entered to be in his
    possession in February, 1963. Therefore, though KS may not be
    the true owner of the property, he obtained possession from AR
    by claiming himself to be the owner and came into possession of
    the property. Thereafter, in a litigation filed by KS against AR,
    KS was held to be the owner in possession of the property. It is,
    however, pertinent to note that neither HR nor the legal heirs of
    9
    HR were parties in the proceedings before the revenue authorities
    or in Suit No. O.S.89 of 1963.
  12. The next important date is 1981 when KS filed O.S. No.3656
    of 1981 out of which the present proceedings arise. Therefore,
    the claim of KS had been that he was in possession of the land
    from 1963 to 1981 claiming ownership as against HR and that
    his possession had matured into title. The Trial Court held in
    favour of KS. The High Court has set aside these findings mainly
    on the ground that KS was not the true owner of the property.
  13. In our considered view, the High Court has not given any
    cogent reasons for coming to the conclusion that KS was not in
    possession of the property. His name figured in the revenue
    record from 1963 to 1981 as the owner in possession.
    Presumption of truth is attached to revenue record which has not
    been rebutted. The High Court has held, and rightly so, that in
    the proceedings decided in favour of KS, HR or his legal
    representatives were not made parties. However, the High Court
    lost sight of the fact that in the proceedings filed by AR, KS was
    not impleaded as a party though his name was shown in the
    revenue record. It is obvious that both sides had tried to obtain
    10
    orders behind each other’s back. Reliance cannot be placed on
    either of the documents in which all the parties were not duly
    represented. The net result is that KS is not the owner of the
    property, but it is equally true that from 1963, he had been
    shown to be in possession pursuant to the application
    (Exhibit P­10) and the order (Exhibit P­11) of the Tehsildar. This
    possession was adverse to the true owner. It was openly hostile
    to the claim of HR and his legal representatives and they never
    filed a suit for possession of the property. Once it is held that KS
    was in possession of the suit property, the consequence will be
    that he is in adverse possession. The legal representatives of HR
    have failed to show­ how they obtained possession from HR.
    Even, according to the case of HR, it was AR who was in
    possession as a tenant. AR surrendered part of the land to KS
    and not to HR. No doubt, in later proceedings in which KS was
    not a party, AR made a statement that he was never a tenant in
    the suit, but such statement flies in the face of the pleadings of
    AR in O.S. No.79 of 1949 filed by HR and the decisions in those
    proceedings. Furthermore, AR had executed a registered salecum­release deed jointly with KS and this was ratified by
    the Tehsildar.
    11
  14. In view of the aforesaid facts, it is apparent that the legal
    heirs of HR miserably failed to prove how they came into
    possession of the suit property. Therefore, we are clearly of the
    view that the High Court gravely erred in coming to the
    conclusion that KS was not in possession of the suit property
    when the suit was filed. He may have been dispossessed after
    filing of the suit but that has no effect on the case.
  15. In a reference made to a larger Bench of this Court in this
    case as well as in other connected matters in the case of
    Ravinder Kaur Grewal & Ors. v. Manjit Kaur & Ors.
    1
    , the
    larger Bench had held that the plea of adverse possession can be
    used both as an offence and as a defence i.e. both as sword and
    as a shield. Relevant portion of the judgment reads as follows:­
    “59. We hold that a person in possession cannot
    be ousted by another person except by due
    procedure of law and once 12 years’ period of
    adverse possession is over, even owner’s right to
    eject him is lost and the possessory owner
    acquires right, title and interest possessed by the
    outgoing person/owner as the case may be
    against whom he has prescribed. In our opinion,
    consequence is that once the right, title or interest
    is acquired it can be used as a sword by the
    plaintiff as well as a shield by the defendant
    within ken of Article 65 of the Act and any person
    who has perfected title by way of adverse
    possession, can file a suit for restoration of
    possession in case of dispossession. In case of
    1 Civil Appeal No.7764 of 2014, decision dated 07.08.2019
    12
    dispossession by another person by taking law in
    his hand a possessory suit can be maintained
    under Article 64, even before the ripening of title
    by way of adverse possession. By perfection of title
    on extinguishment of the owner’s title, a person
    cannot be remediless. In case he has been
    dispossessed by the owner after having lost the
    right by adverse possession, he can be evicted by
    the plaintiff by taking the plea of adverse
    possession. Similarly, any other person who might
    have dispossessed the plaintiff having perfected
    title by way of adverse possession can also be
    evicted until and unless such other person has
    perfected title against such a plaintiff by adverse
    possession. Similarly, under other Articles also in
    case of infringement of any of his rights, a plaintiff
    who has perfected the title by adverse possession,
    can sue and maintain a suit.
  16. When we consider the law of adverse
    possession as has developed vis­à­vis to property
    dedicated to public use, courts have been loath to
    confer the right by adverse possession. There are
    instances when such properties are encroached
    upon and then a plea of adverse possession is
    raised. In Such cases, on the land reserved for
    public utility, it is desirable that rights should not
    accrue. The law of adverse possession may cause
    harsh consequences, hence, we are constrained to
    observe that it would be advisable that concerning
    such properties dedicated to public cause, it is
    made clear in the statute of limitation that no
    rights can accrue by adverse possession.
    61……We hold that plea of acquisition of title by
    adverse possession can be taken by plaintiff under
    Article 65 of the Limitation Act and there is no bar
    under the Limitation Act, 1963 to sue on aforesaid
    basis in case of infringement of any rights of a
    plaintiff.”
  17. Thus, there can be no manner of dispute that a plaintiff can
    claim title to the property based on adverse possession.
    13
  18. In view of the above discussion, the appeal is allowed,
    judgment and decree of the High Court is set aside and that of
    the trial court is restored. Pending application(s), if any, stands
    disposed of.
    …………………………….J.
    (Deepak Gupta)
    …………………………….J.
    (Aniruddha Bose)
    New Delhi
    September 26, 2019
    14