IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MRS JUSTICE K.S.MUDAGAL REGULAR SECOND APPEAL NO.938 OF 2018 (POS) BETWEEN:
MR.NONAYYA POOJARY S/O LATE KORAGA POOJARY AGED ABOUT 69 YEARS R/AT SUBRAMANYA NAGAR 10TH THOKUR VILLAGE HALEYANGADY POST MANGALURU TALUK DAKSHINA KANNADA DISTRICT – 574 146 ... APPELLANT (BY SRI JAGADISH N., ADV.) AND:
MR.PURUSHOTHAMA S/O LATE MAANU MOOLYA AGED ABOUT 41 YEARS R/AT KAMALA NIVAS 10TH THOKUR VILLAGE HALEYANGADI POST MANGALURU TALUK DAKSHINA KANNADA DISTRICT – 575 146 ... RESPONDENT (BY SRI VIKAS KRISHNA K., ADV. FOR SRI SACHIN B.S., ADV.) THIS RSA IS FILED UNDER SECTION 100 OF CPC, 1908, AGAINST THE JUDGMENT AND DECREE DATED:23.09.2017 PASSED IN R.A.NO.94/2015 ON THE FILE OF THE III ADDL. SENIOR CIVIL JUDGE (ITINERARY AT MOODABIDRI, MANGALURU D.K., DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 25.04.2009 PASSED IN OS NO.157/2005 ON THE FILE OF THE CIVIL JUDGE (JR.DN.) AND JMFC., MOODBIDRI.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This is defendant’s second appeal challenging the judgment and decree dated 23.9.2017 in Regular Appeal No.94/2015 passed by the III Additional Senior Civil Judge, Mangaluru, D.K. (Itinerary at Moodabidri).
2. By the impugned judgment, the First Appellate Court has confirmed the judgment and decree dated 25.4.2009 in O.S.No.157/2005 passed by the Civil Judge (Jr.Dn.) & J.M.F.C., Moodbidri. By the said judgment, the Trial Court has decreed the suit of the plaintiff for possession and mesne profits.
3. The subject matter of the suit was lands measuring 10 cents out of Sy.No.34/22, .02 cents out of Sy.No.34/18 situated within 10th Thokur Village of Mangalore Taluk.
4. For the purpose of convenience, the parties will be referred henceforth with their ranks before the trial Court.
5. Plaintiff is the son of one Maanu Moolya. The Land Tribunal, Mangalore, under order Ex.P7 granted the lands bearing Sy.No.34/22 measuring 57 cents and Sy.No.34/18 measuring 15 cents on 5.10.1981 on the basis of Ex.P8 Form No.10 submitted by Maanu Moolya. Maanu Moolya died on 9.10.1996.
6. The plaintiff claimed that Maanu Moolya executed Will dated 15.12.1988 bequeathing the aforesaid two lands to his wife and children including the plaintiff and since the death of Maanu Moolya, they were in possession and enjoyment of the property. The plaintiff further contended that the defendant encroached upon the suit scheduled ‘B’ and ‘C’ properties i.e., 10 cents out of Sy.No.34/22 and .02 cents out of Sy.No.34/18 in November 2000 inspite of the protest of plaintiff and his family members. It was contended that plaintiff got the property surveyed and the encroachment was found and though the defendant assured to handover the encroached portion, he did not do so.
7. The defendant contested the suit denying the encroachment. He contended that the suit property belonged to one Loku Shedthi. Under an oral agreement dated 1.3.1985, he acquired the possession of the written statement ‘A’ and ‘B’ schedule properties i.e., Sy.no.34/19 measuring 40 cents and 34/22 measuring 10 cents. He further claims that earlier to that, Chandrahasa Suvarna had acquired the said properties under an agreement between himself and Loku Shedthi and thereafter Chandrahasa Suvarna sold written statement ‘A’ and ‘B’ schedule properties under the registered sale deed dated 22.3.1996 and Loku Shedthi had purchased the said property from one Abdul Khaleel Asadi on 8.10.1964. He contended that since 1.3.1985, he was in exclusive possession and enjoyment of the said properties and thereby he has perfected his title by adverse possession against Maanu Moolya. Defendant contended that the suit is barred by time and other co-owners of the property were necessary parties to the suit and therefore, suit is bad for non-joinder of necessary parties.
8. On the basis of such pleadings, the Trial Court framed the following issues:
1. Whether the plaintiff proves that he is the co- owner of the suit properties by virtue of will dated:15.12.1988?
2. Whether the plaintiff proves that the defendant is in unauthorized possession of the suit ‘B’ schedule property?
3. Whether the defendant proves that he has perfected the title over the suit ‘B’ schedule property by adverse possession?
4. Whether the plaintiff is entitled for the relief of possession of suit ‘B’ schedule property?
5. Whether the plaintiff is entitled for mesne profits? If so what would be the quantum?
6. What order or Decree?
9. In support of his claim, the plaintiff got himself examined as PW-1 and one witness PW-2 and got marked Exs.P1 to P24. The defendant got himself examined as DW-1 and got marked Exs.D1 to D5.
10. The Trial Court after hearing the parties by the judgment and decree, decreed the suit holding that the defendant has failed to prove his case of adverse possession. The Trial Court further held that as per the sale deed Ex.D5 produced by the plaintiff himself, he was put in possession of the property on 22.3.1996. Therefore, the period prescribed for perfecting the title by adverse possession is not completed. It was further held that the defendant failed to examine anybody to substantiate his contention of adverse possession. Thus, decreed the suit.
11. The First Appellate Court by the impugned judgment concurred with the reasonings and findings of the Trial Court and dismissed the appeal of the defendant.
12. Before the First Appellate Court, the defendant filed two applications I.A.Nos.44 and 45 seeking for framing additional issues and for amending the written statement. The First Appellate Court dismissed those applications also holding that proposed amendment is belated and not required and so far as additional issue, though issue was not raised, it was considered.
13. Sri.Jagadish.N., learned Counsel for the defendant/appellant submits that though the defendant raised defence of suit being bad for non-joinder of necessary parties and barred by limitation, the Trial court failed to frame necessary issues for that, thereby substantial injustice is caused. He further contends that trial court fell in error in considering issue Nos.1 and 2 together and relying on the stray admission of DW-1. Thus, according to him, the following substantial questions of law arise in the case:
1. Whether the Trial Court and the 1st Appellate Court were justified in not framing issue regarding filing the Suit within the limitation period?
2. Whether the Trial Court was justified in answering Issue No.1 and 2 collectively?
3. Whether the Trial Court and the 1st Appellate Court were justified in not framing the issues regarding non-joinder of necessary parties to the Suit?
4. Whether the Trial Court and the 1st Appellate Court was justified in not noticing the statutory provision of Section-31 of the Indian Evidence Act pertaining to stray admissions made during the course of trial?
14. Sri.Vikas Krishna.K., learned Counsel for the plaintiff/respondent contends that none of the questions raised were substantial questions of law. He further submits that though the defendant contended that he has perfected his title by adverse possession, he failed to substantiate such defence. He submits that the First Appellate Court did not solely rely on the admissions of DW-1 and they were relied only for corroboration, therefore, none of the questions raised are substantial questions of law.
15. An appeal under Section 100 CPC can be admitted for hearing only if there are substantial questions of law. It is the settled principle of law that on the question of fact, the first appellate court is the last court. So far as the question of law also, it is held that all the questions of law are not the substantial questions of law. Only such questions of law, which are not settled or debatable, are the substantial questions of law.
16. In Santosh Hazari –vs- Purushottam Tiwari (Dead) by LRs. - AIR 2001 SC 965 the Hon’ble Supreme Court has laid detailed guidelines with regard to what are the substantial questions of law as follows:
“14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be ‘substantial’ a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law ‘involving in the case’ there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any list.
(emphasis supplied) 17. The plaintiff traces source of title through his father. The very fact of defendant claiming title by adverse possession shows that he admits the title of plaintiff’s father. In addition to that, Exs.P7 and P8, the order of the Land Tribunal and Form No.10 show that the lands in question were granted to the father of the plaintiff on 5.10.1981.
18. So far as the Will under which the plaintiff claims, plaintiff examined the attestor of the document and courts below held that the evidence led by the plaintiff regarding Will was unimpeachable. Apart from that, defendant is stranger to the family and no other heirs of Maanu Moolya challenged the Will. Therefore, the title of the plaintiff’s father and plaintiff to the property was established.
19. So far as plaintiff not impleading other legatees under the Will, this Court in Bheemanagowda –vs- Syed Murtuzakadri ILR 1995 KAR 1299 has held that one co- owner can maintain a suit for possession against a trespasser without impleading other co-owners. This position of law holds good even to this day. Though no specific issue was framed in that regard, the trial court considered that aspect assigning reasons and the first appellate court also concurred with that. Therefore, third substantial question of law as framed is not substantial question of law.
20. Regarding limitation, the defendant himself contended that he has perfected his title by adverse possession. The suit was for possession based on title, which is covered under Article 65B of the Limitation Act 1963. The period prescribed for filing the suit was 12 years. The courts below relying on the sale deed of the defendant himself said that he was put in possession of the property as per the recital therein on 9.10.1996. The suit was filed in 2005. Thus, suit is in time.
21. Though specific issue was not framed, the said aspect was considered while considering issue No.3 i.e., issue regarding adverse possession. This Court in Sri Vishwaraj & Another –vs- B.M.Byrappa & Others ILR 2013 KAR 1711 in this regard has held as follows:
“56. Where the parties go to the trial knowing fully well the rival contentions and have tendered evidence not only in support of their contentions but also by denying the case of other side, it cannot be said that non framing of a specific issue is fatal to the case or it would vitiate the proceedings and conclusion arrived at.”
Thus, the said question raised is also settled by judicial pronouncement of this court and thus does not become a substantial question of law.
22. So far as consideration of issue Nos.1 and 2 together, there is no such legal bar for considering the issues which overlap on each other. Ultimately, the Trial Court has given findings on the issues independently. Therefore, the question raised in that regard is also not a substantial question of law.
23. So far as the courts relying on the admissions of DW-1 in his evidence, perusal of the judgments of both the courts shows that they did not render the judgment solely relying on the said admission of DW-1. As against that, they relied on all other evidence more particularly documentary evidence.
24. Though the defendant set up the defence of perfection of title by adverse possession as well as claimed the property by virtue of sale deed, which are mutually inconsistent, he did not choose to examine the alleged vendors or persons who allegedly put him in possession. He claimed that he came in possession through one Mohandas Suvarna, Chandrahasa Suvarna and all those persons were not examined. The heavy burden was on the defendant to establish his case of perfection of title by adverse possession and that was not discharged.
On careful consideration of the material on record, this Court does not find any substantial question of law in the matter to admit the appeal. Therefore, the appeal is dismissed with costs.
In view of disposal of the appeal I.A.No.2/2018 does not survive for consideration and hence, it stands disposed of.
Sd/- JUDGE KNM/-