Plaintiffs Slept Over Their Title For 40 Years, Now Cannot Wake Up Claiming Encroachment: Karnataka High Court Dismisses Possession Appeal

"Where a party does not step into the witness box, a presumption arises that the case set up by him is not correct" —  High Court of Karnataka delivered a detailed and well-reasoned judgment in the case of Sri Gullu G. Talreja @ Prakash G. Talreja & Others vs. Sri Sanjay Abbas Khan, affirming the trial court's dismissal of a civil suit seeking declaration, possession, and mandatory injunction. The Division Bench of Justice K. Somashekar and Justice Venkatesh Naik T ruled decisively that: “The plaintiffs have failed to prove that ‘B’ Schedule property is part of Sy. Nos. 28/1 and 28/2 of Nagarur Village and that the defendant has encroached upon it.”

The judgment underscores the legal necessity for plaintiffs to establish their title and possession, rather than relying on perceived weaknesses in the defence.

“Boundaries Prevail Over Extent”: Court Relies on Long-Standing Principle to Reject Plaintiff's Boundary Dispute

At the core of the dispute was a 1 acre 16 guntas stretch of land (Schedule ‘B’), which the plaintiffs claimed formed part of their larger holding (Schedule ‘A’) in Survey Nos. 28/1 and 28/2 of Nagarur Village, Nelamangala Taluk. They alleged that the defendant had illegally fenced and encroached on this land, and thus sought recovery and injunction.

However, as the Court observed: “There is nothing on record to prove that ‘B’ schedule property is part of Sy. Nos. 28/1 and 28/2. The official survey sketch shows a road separating the two parcels of land.”

The Court relied on survey sketch Ex.P22, which clearly depicted the Makali-Yadalu Road as the western boundary between the plaintiffs’ land and the defendant’s Sy. No. 27/4. The Court concluded: “It clearly establishes that there is a road which separates Sy. Nos. 28/1 and 28/2 from Sy. No.27 and Kodipalya Village.”

Thus, the plaintiffs’ claim of encroachment was rejected outright.

“Plaintiffs Are Not Entitled To Relief After Failing To Enter The Witness Box”: Court Draws Adverse Inference

One of the decisive factors in the judgment was the plaintiffs’ failure to personally appear and testify. Instead, a power of attorney holder was examined. The Court held: “Where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct.”

This principle, drawn from Mohinder Kaur vs. Sant Paul Singh [(2019) 9 SCC 358], was central to the High Court’s rejection of the plaintiffs’ version of events.

“Rectification Deed Is an Afterthought and Suppressed Document”: Court Rejects Late Evidence Attempt

The plaintiffs, in a desperate bid to cure discrepancies in the boundary description of their sale deeds, sought to introduce a Rectification Deed through an application under Order 41 Rule 27 CPC. The High Court refused to accept it, holding: “The rectification deed is purely an afterthought to withdraw admissions made in cross-examination and is a created document. It does not carry any legal sanctity.”

The Court further noted that neither the plaintiffs nor PW2 (son of the original vendor) disclosed the existence of this rectification in their affidavit evidence. It ruled that: “The intention of the original vendor cannot be altered or substituted by a rectification deed executed decades later by a legal representative.”

Thus, the plea for additional evidence was dismissed.

“Possession Alone Is Not Enough To Claim Adverse Possession”: Court Dismisses Defendant’s Alternative Claim Too

Although the defendant had taken an alternative plea that he had perfected title by adverse possession, the High Court clarified that such a claim is only relevant if the plaintiffs first prove their title — which they failed to do. Citing T. Anjanappa vs. Somalingappa, the Court reiterated:

“Mere possession however long does not necessarily mean that it is adverse to the true owner.”

Ultimately, the Court held that: “The burden of proof lies on the plaintiffs, and they have failed to discharge it. They cannot succeed merely by pointing to defects in the defendant’s case.”

Plaintiffs Could Not Prove What They Owned, Nor That It Was Taken

The High Court concluded its 75-page detailed judgment by affirming the trial court’s decree, holding that:

“The plaintiffs have failed to prove either ownership or possession over ‘B’ Schedule property. Their documents and admissions point clearly to the Makali-Yadalu road as the boundary. The appeal lacks merit and is dismissed.”

The ruling sends a strong reminder that title suits must be grounded in clear evidence of ownership and possession. Courts will not entertain speculative or afterthought claims based on vague documentation or belated correction attempts.

Date of Decision: 15 May 2025