IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM REGULAR SECOND APPEAL NO. 2116 OF 2016 BETWEEN:
C.G.PANDURANGAPPA S/O GANAPATHAPPA AGED ABOUT 66 YEARS MERCHENT R/O SORAB ROAD, SAGAR CITY, SHIVAMOGGA DISTRICT PIN-577401.
...APPELLANT (BY SRI.HARISH KUMAR M.S., ADVOCATE) AND:
C.G. VISHWANATHA S/O GANAPATHAPPA AGED ABOUT 56 YEARS AGRICULTURIST R/O CHIKKERURU VILLAGE HIREKERURU TALUK HAVERI DISTRICT PIN-581111.
…RESPONDENT THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATE:26.09.2016 PASSED IN R.A.NO.14/2015 ON THE FILE OF THE V ADDL. DISTRICT AND SESSIONS JUDGE, SHIVAMOGGA (SITTING AT SAGAR), DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED;27.01.2015 PASSED IN OS.NO.54/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE AND J.M.F.C. SAGAR.
THIS RSA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This is defendant’s second appeal questioning the correctness and validity of the judgment and decree dated 26.9.2016 passed in R.A.No.14/2015 by the V Additional District and Sessions Judge, Shivamogga sitting at Sagar, confirming the judgment and decree dated 27.1.2015 passed in O.S.No.54/2012 by the Senior Civil Judge and JMFC, at Sagar.
2. The facts leading to this case are as under:
The plaintiff had sought for the relief of possession by filing the suit in O.S.No.54/2012. The case of the plaintiff is that he is the owner of the suit schedule property bearing katha No.324 consisting of vacant site and shop premises situated at 8th Ward of Soraba Road, Sagar Town. The said property was allotted to him in the family partition and pursuant to the partition his name was mutated in the revenue records and is paying tax in respect of the said property. The defendant, who is his elder brother and doing business in Sagar Town, is in possession of the said property with the consent of the plaintiff. After partition, he was running a shop in the suit schedule property and thereafter he closed the shop and had kept the suit schedule property under lock. In the year 1999, on the request made by the defendant, he allowed him to run shop in the suit schedule property and also to use the temporary shed situated therein. The defendant had agreed to hand over the vacant possession of the suit schedule property whenever he demands him to vacate the suit schedule property. In the year 2004, he was in need of the suit schedule property for his personal use and hence, he requested the defendant to handover vacant possession of the suit schedule property. However, the defendant went on postponing and as such he was constrained to issue a legal notice on 23.08.2004. Since the defendant did not handover vacant possession of the suit schedule property, he was constrained to file the suit for possession.
After receipt of notice, the defendant appeared and contested the proceedings by filing written statement. He admitted the title of the plaintiff and also the fact that the suit schedule property was allotted to the respondent-
plaintiff in the family partition. However, the averment in the plaint with regard to the handing over possession to him to do business was denied. The defendant also contended that he has perfected his title by way of adverse possession and that the suit is false and frivolous. Hence, prayed to dismiss the suit.
The Trial Court based on the above rival contentions, framed the following issues:
“1. Whether the Plaintiff proves that the defendant is in possession of the suit schedule property as a Licensee ( ¥ÀgÀªÁ£ÀV ªÉÄÃgÉUÉ) under him?
2. Whether the defendant proves that he has perfected his title over the suit schedule property by way of adverse possession?
3. Whether the defendant proves that the suit is barred by limitation?
4. Whether the defendant proves that the valuation of the suit is not correct and that the Court Fee paid is not sufficient?
5. Whether the defendant proves that this Court has not pecuniary jurisdiction to try the suit?
6. Whether the Plaintiff is entitled for possession of the suit schedule property?
7. Whether the Plaintiff is entitled for mesne profits prayed for?
8. What Decree or Order?”
The plaintiff-respondent herein in support of his contention examined himself as P.W.1 and produced documentary evidence as per Exs.P1 to P6. The defendant-appellant herein in support of his contention examined himself as D.W.1 and produced documents as per Exs.D1 to D26.
The Trial Court having examined the rival contentions and oral and documentary evidence on record has recorded a finding that the defendant was in permissive possession of the suit schedule property. The Trial Court also took judicial note of the fact that the defendant has not disputed the fact that the suit schedule property was subject matter of partition and the same was allotted to the respondent-plaintiff. In the background of these categorical admissions and since the defendant- appellant having set up the plea of adverse possession failed to prove that he has perfected his title by adverse possession, the Trial Court proceeded to decree the suit.
Being aggrieved by the judgment and decree of the Trial Court, the defendant-appellant herein preferred an appeal before the lower appellate Court in R.A.No.14/2015. The lower appellate Court on re- appreciation of the entire evidence on record was of the view that the revenue records stand in the name of the plaintiff-respondent herein and that the defendant- appellant having set up the plea of adverse possession has not furnished the particulars as to on which date the possession become adverse to the interest of the true owner and that mere possession for a period of 12 years would not necessarily satisfy the ingredients of adverse possession. Since the defendant-appellant failed to prove his adverse possession, his uninterrupted possession hostile animus to the knowledge of the plaintiff is missing and as such the lower appellate Court proceeded to dismiss the case of the plaintiff thereby confirming the judgment and decree of the trial Court.
The appellant being aggrieved by the aforesaid judgments and decrees of the Courts below is before this Court in this second appeal.
3. The learned counsel for the appellant would vehemently argue that the appellant-defendant was in possession of the suit schedule property much prior to the partition and even after partition, the plaintiff was never put in possession of the suit schedule property. The appellant continued to do his business in the suit schedule property. The defendant asserting right and ownership has paid commercial and municipal taxes and that he has been in possession since about 20 years continuously and uninterruptedly which is well within the knowledge of the respondent-plaintiff. In view of this clinching material on record he has perfected his title by adverse possession.
4. Heard the learned counsel for the appellant and on perusal of the judgments of the Courts below, this Court is of the view that the appellant-defendant having taken the plea that he has perfected his title by way of adverse possession is required to establish the same by producing cogent and clinching evidence. The appellant- defendant except making bald statement has not furnished any particulars as to the date on which the possession became hostile animus to that of the respondent-plaintiff. No clinching evidence is placed on record to indicate that he was enjoying the suit schedule property by asserting right and title over the property in question. There is absolutely no evidence to indicate on which date the defendant’s possession over the suit schedule property becomes hostile animus. Mere tax paid receipt, receipt for having paid water charges and certificates issued by the Weight and Measurement Department in itself would not be sufficient to bring the case within the ambit of law of adverse possession. These documents are also to be examined in the background that appellant and respondent are full brothers. In view of proximity of relationship, it can be inferred that the taxes were paid on behalf of respondent-plaintiff who happens to be the brother. The appellant/defendant contention that he is in possession much prior to partition would in no way confer any title on appellant. Appellant has not placed any clinching evidence to demonstrate that he conveyed his intent to assert an adverse title to that of plaintiff and this assertion of a hostile title was open and sufficient in publicity. Under Article 65 of Limitation Act, burden is on appellant/defendant to prove affirmatively. In deciding whether the acts alleged by a person, constitute adverse possession, regard must be had to the animus of person doing those acts which must be ascertained from the facts and circumstances of each case. In the present case on hand, appellant has failed to place clear and unequivocal rebuttal evidence. Appellant’s case is that he was in possession much prior to partition. In that event, appellant can assert adverse title when the family was joint in absence of plea of ouster. On examination of record, there is no material indicating appellant asserting adverse title against plaintiff after partition.
5. Both the Courts below have meticulously examined the evidence on record. It is the trite law that whenever the defendant sets up title by way of adverse possession, the entire burden would be on the defendant and it is only in the event of defendant establishing title by way of adverse possession, the plaintiff has to be non- suited. In the present case on hand, there is absolutely no iota of evidence to indicate that the appellant has perfected his title by adverse possession. Since the appellant-defendant has admitted in the written statement with regard to the title of the plaintiff and also allotment of suit schedule property in favour of the respondent-plaintiff in the partition, in the absence of rebuttal evidence let in by the appellant-defendant, both the Courts below were justified in decreeing the suit directing the appellant herein to handover vacant possession. The lower appellate Court on re-appreciation of the entire material on record has concurred with the judgment of the Trial Court holding that the reasoning assigned by the Trial Court does not warrant any interference. The grounds raised and the points formulated by the appellants do not indicate that substantial question of law is involved in the top noted appeal.
In the light of the above discussions, this Court is of the view that the appeal does not warrant any substantial question of law to be framed in this case. Consequently, the appeal is dismissed. No order as to costs.
Sd/- JUDGE *alb/-