In The High Court Of Karnataka At Bengaluru DATED THIS THE 25TH DAY OF NOVEMBER, 2019 BEFORE The Hon’ble Mr. Justice B.M.Shyam Prasad Regular Second Appeal No. 247 OF 2019 (POS) c/w Regular Second Appeal No. 248 OF 2019 IN RSA NO. 247/2019 BETWEEN:
1. SRI B. RAM SINGH AGED ABOUT 58 YEARS, SON OF SRI BASAVANTHA SINGH RESIDING IN A PORTION OF D.NO.119, MAIN ROAD NACHANAHALLI PALYA MYSURU - 570 008.
2. SRI B. JAYARAM SINGH SON OF SRI BASAVANTHA SINGH RESIDING IN A PORTION OF D.NO. 119, MAIN ROAD, NACHANAHALLI PALYA MYSURU - 570 008.
... APPELLANTS (BY SRI. Y. K. NARAYANA SHARMA, ADVOCATE) And:
SRI PARASHURAM SINGH SINCE DEAD BY HIS LEGAL REPRESENTATIVES 1. SMT. SUDHA BAI AGED ABOUT 58 YEARS, WIFE OF LATE PARASHURAM SINGH 2. SRI. DEVENDRA SINGH AGED ABOUT 37 YEARS SON OF LATE PARASHURAM SINGH.
3. SMT. MAMATHA BAI AGED ABOUT 35 YEARS DAUGHTER OF LATE PARASHURAM SINGH.
4. SRI RAMSINGH AGED ABOUT 35 YEARS SON OF LATE PARASHURAM SINGH.
5. SRI BASAVANTH SINGH AGED ABOUT 32 YEARS SON OF LATE PARASHURAM SINGH.
6. SMT. KAMALA BAI AGED ABOUT 30 YEARS DAUGHTER OF LATE PARASHURAM SINGH.
7. SMT. GAYATHRI BAI AGED ABOUT 31 YEARS DAUGHTER OF LATE PARASHURAM SINGH.
ALL ARE R/AT D.NO. 119, MAIN ROAD, NACHANAHALLI PALYA MYSURU - 570 008.
... RESPONDENTS (BY SRI. S. SARAVANA., ADVOCATE FOR;
SRI. D. R. RAVISHANKAR., ADVOCATE FOR R1 TO R7) THIS REGULAR SECOND APPEAL IS FILED UNDER SEC.100 READ WITH ORDER XLI RULE 1 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 01.09.2018 PASSED IN R.A. NO. 23/2016 ON THE FILE OF THE II ADDITIONAL DISTRICT JUDGE, MYSURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 30.11.2015 PASSED IN OS. NO.359/1998 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, MYSURU.
IN RSA NO. 248/2019 BETWEEN:
SRI B. RAM SINGH AGED ABOUT 58 YEARS, SON OF SRI BASAVANTHA SINGH, RESIDING IN A PORTION OF D. NO. 119, MAIN ROAD, NACHANAHALLI PALYA, MYSURU - 570 008.
... APPELLANT (BY SRI Y.K.NARAYANA SHARMA, ADVOCATE ) And:
SRI. PARASHURAM SINGH SINCE DEAD BY HIS LEGAL REPRESENTATIVES, 1. SMT. SUDHA BAI, AGED ABOUT 58 YEARS, WIFE OF LATE PARASHURAM SINGH.
2. SRI. DEVENDRA SINGH AGED ABOUT 37 YEARS, SON OF LATE PARASHURAM SINGH.
3. SMT. MAMATHA BAI AGED ABOUT 35 YEARS, DAUGHTER OF LATE PARASHURAM SINGH.
4. SRI. RAMSINGH AGED ABOUT 35 YEARS, SON OF LATE PARASHURAM SINGH.
5. SRI. BASAVANTH SINGH AGED ABOUT 32 YEARS, SON OF LATE PARASHURAM SINGH.
6. SMT. KAMALA BAI AGED ABOUT 30 YEARS, DAUGHTER OF LATE PARASHURAM SINGH.
7. SMT. GAYATHRI BAI AGED ABOUT 31 YEARS, DAUGHTER OF LATE PARASHURAM SINGH.
RESIDING AT D. NO. 119, MAIN ROAD, NACHANAHALLI PALYA, MYSURU-570008.
... RESPONDENTS (BY SRI S. SARAVANA, ADVOCATE FOR; SRI D. R. RAVISHANKAR., ADVOCATE) THIS REGULAR SECOND APPEAL IS FILED UNDER SEC.100 READ WITH ORDER XLII RULE 2 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 01.09.2018 PASSED IN R.A. NO. 35/2016 ON THE FILE OF THE II ADDITIONAL DISTRICT JUDGE, MYSURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 30.11.2015 PASSED IN OS. NO. 53/2000 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, MYSURU.
THESE APPEALS HAVING BEEN HEARD AND RESERVED ON 14.10.2019 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THIS COURT DELIVERED THE FOLLOWING:
JUDGMENT These appeals are filed impugning the common judgment and decree dated 1.9.2018 in RA No.23/2016 and 35/2016 on the file of the II Additional District Judge at Mysuru (for short, the ‘appellate Court’) and the common judgment and decree dated 30.11.2015 in O.S.No.53/2000 and O.S. No. 359/1998 on the file of the Principal Senior Civil Judge, Mysuru (for short, the ‘civil Court’). The appeal in RSA No. 247/2019 is as against the judgement and decree in OS No. 359/1998 and RA No. 23/2016, and the appeal in RSA No. 248/2019 is as against the judgement and decree in OS No. 53/2000 and RA No. 35/2016.
2. The suit in O.S.No.53/2000 (originally numbered as O.S.No.114/1995) is a suit for permanent injunction, and the suit in O.S. No. 359/1998 is a cross suit for possession. The Civil Court by its impugned judgment dated 30.11.2015 has dismissed the suit in O.S. No. 53/2000 and decreed the suit in OS No. 359/1998. The appellate Court by its impugned judgment dated 1.9.2018 has dismissed the corresponding appeals confirming the civil Court’s judgment and decree.
3. The immovable property measuring East to West 50 Feet and North to South 60 Feet in Door No.119, Main Road, Nachanahalli Palya, Mysuru South, Mysuru is the subject property in O.S.No.53/2000, and a portion of this property, a residential premise measuring 20’X40’, is the subject property of the suit in OS No. 359/1998. The larger property that is subject matter of the suit in OS No. 53/2000, is referred to as the ‘subject property’ and the portion of this larger property, which is subject matter of the suit in OS No. 359/1998, is referred to as the ‘residential premises’. The parties to the proceedings, for the reasons of convenience, are referred to as they are arrayed in the suit in O.S.No.53/2000, and with the defendant, Sri. Parashuram Singh being deceased and now represented by his legal representatives, the respondents is referred to by his name.
4. The plaintiff has filed the suit in O.S.No.53/2000 (originally numbered as 114/1995) against his brother – the deceased Sri. Parashuram Singh for permanent injunction from interfering with his peaceful possession and enjoyment of the subject property. The plaintiff has asserted that the father, Sri Basanth Singh, was a tenant in possession of about 18 acres of land in Sy.Nos.61, 62, 63, 66 and 163 of Nachanahalli Palya Village, Mysuru owned by one V.V. Ramanath Chettiar, who transferred these lands in favour of the father, Sri. Basant Singh, Sri Parashurama Singh, and the other brother – Sri Jayaram Singh (the co – defendant in OS No. 359/1998) under three different sale deeds on 2.1.1975, and on the very same day, they transferred the respective extents purchased by them under these sale deeds in favour of M/s. Engineering Co-operative Society Limited, Mysuru. However, an extent measuring 250 feet x 60 Feet in Sy No. 63 is retained. The details of the Sale Deeds executed in the favour of the father and the brothers with the corresponding details are as follows:
Name of the purchaser, and the subsequent vendor Sri. Basant Singh Sri Parashuram Singh Details of the Lands Land in Sy No. 62, 66 and 163 Nachanahalli Palya Village Mysuru Land in Sy. No. 63, Nachanahalli Palya Village Mysuru The date of the Sale Deed under which the corresponding lands are purchased and transferred The lands are purchased under the Sale Deed dated 2.1.1975, and transferred under the even dated Sale Deed as per Ex. P 3 The land is purchased under the Sale Deed dated 2.1.1975, and transferred under the even dated Sale Deed as per Ex. P 2 and also Ex. D1 Sri. Jayaram Singh Land in Sy. No. 61, Nachanahalli Palya Village Mysuru The land is purchased under the Sale Deed dated 2.1.1975, and transferred under the even dated Sale Deed as per– Ex. P 4 There is a specific reference to the retention of ownership and possession of the extent of 250 Feet x 60 Feet in the sale deed executed by Sri Parashuram Singh in favour of M/s. Engineering Co-operative Society.
5. Sri. Basant Singh and his sons viz., Sri Parashuram Singh, Sri. Jayaram Singh and the plaintiff were members of a joint family, and the lands in Sy.Nos.61, 62, 63, 66 and 163 of Nachanahalli Palya Village Mysuru were purchased by Sri. Basant Singh, the father and his two sons viz., Sri Parashuram Singh and Sri. Jayaram Singh as members of this joint family. The extent measuring 250 feet x 60 Feet retained under the Sale Deed dated 2.1.1975 executed by Parashuram Singh is a property of this joint family. The father, Sri Basanth Singh, as the kartha of the joint family, constructed residential buildings in this extent retained for the use of the family members. Later, in order to avoid disputes inter se members of the family, the said extent of 250 Feet x 60 feet was partitioned with the consent of the members of the joint family. The terms of such partition were reduced into a Panchayath Paluparikath, and in this partition, the subject property was allotted to the plaintiff and the subject property comprises of construction viz., the residential premises.
6. The plaintiff has exclusive possession of the subject property, and he resides in this property with his wife and children. The elder brother Sri Jayaram Singh is also permitted to occupy a portion of the construction because he is yet to construct a building in the portion allotted to him. The subject property has a separate gate and is enclosed by fence. The defendant, all of a sudden turned hostile against the plaintiff and tried to remove the fence. As such, the cause of action for the suit for permanent injunction.
7. Sri Parashuram Singh contested the suit asserting that he was the absolute owner of the land measuring 6 acres 23 guntas in Sy.No.63 of Nachanahalli Palya Village, Kasaba Hobli, Mysuru. In fact, he was looking after a total extent of 18 acres of land comprised in Sy.Nos.61, 62, 63, 66 and 163 of Nachanahalli Palya Village, Kasaba Hobli, Mysuru. His father was not engaged in any work and he would wail away his time. He was personally cultivating these lands, and in fact his elder brother, Sri Jayaram Singh was also not working. In the interest of the family members, he ensured that the total extent of 18 acres registered in Sy.Nos.61, 62, 63, 66 and 166, was purchased in three different parts. The father, Sri. Basant Singh, and the elder brother, Sri Jayaram Singh, transferred their respective portions in favour of M/s. Engineering Cooperative Society Limited. He transferred the land in Sy. No.63 in favour of M/s. Engineering Co-operative Society Limited retaining for his own use an extent measuring East to West 250 feet and North to South 60 feet. He has constructed residential buildings in this extent, and he is in possession of this extent except residential premises constructed therein.
8. The plaintiff, and the elder brother, Sri Jayaram Singh, were living in the village and they were penniless. They requested him for shelter, and out of mercy he permitted them to live in the residential premises. They were all living together until about two years prior to the date of the suit, and because of the misunderstanding amongst the family members, he constructed a separate residence within the larger property and he is residing in the said residence. The plaintiff is taking advantage of his benevolence, and in fact, he is attempting to create third party rights in the subject property.
9. Sri Parashuram Singh, apart from thus contesting the plaintiff’s suit in OS No.53/2000, responded with his own suit in O.S.No.359/1998 for possession of the Residential Premises. He filed this suit in O.S.No.359/1998 on 13.08.1998. In this suit, he asserted that he started working at a tender age because the father, Sri Basanth Singh did not have any property. He started accumulating savings and because of accumulated savings he commenced business in used wooden frames. He could gradually improve his financial position, and this prompted him to consider purchasing immovable property. The father also joined him in this business, and both of them augmented their respective incomes and therefore, the father also wanted to purchase immovable property. They were scouting for immovable properties in and around Mysuru when he learnt that land in Sy.No.63 of Nachanahalli Palya Village measuring 6 acres 23 guntas and the adjacent lands in Sy.No.61, 62, 66 and 163 were available for immediate purchase. He also informed his father, Sri Basanth Singh. Accordingly, he purchased 6 acres 23 guntas in Sy.No.63 of Nachanahalli Palya village and his father and brother Sri Jayaram Singh purchased the lands in Sy.No.61, 62, 66 and 163 of Nachanahalli Palya Village, Mysuru.
10. M/s. Engineering Cooperative Society Pvt. Ltd., offered to purchase the entire parcel of land in Sy.Nos.61, 62, 63, 66 and 163, and after negotiations, he transferred the land in Sy.No.63 of Nachanahalli Palya Village retaining for his own use an extent of 250 feet x 60 feet. He retained this extent for his own use and also planned to use a portion of this property for his business. His father, Sri. Basanth Singh and his brother, Sri. Jayaram Singh transferred the respective portions purchased by them in favour of M/s. Engineering Co-operative Society, and voluntarily started living with him.
11. The father, Sri. Basanth Singh, lived with him until his demise. After the demise of the father, he called over the defendants viz., the plaintiff and the elder brother, Sri Jayaram Singh, to join him for the purposes of performing obsequies. The plaintiff and the other brother, Sri. Jayaram Singh requested for permission to reside in a portion of a building until the obsequies, which would take a year, were completed. He bona fide permitted them to occupy residential premises. But they did not vacate the residential premises though the obsequies were completed. They requested for permission to continue in the accommodation, the residential premises allotted to them. The plaintiff and the elder brother became lazy and were not interested in earning. Therefore, he was constrained to call upon the defendants either to find a vocation for themselves or to vacate the accommodation allotted to them. They instigated a certain Aiyappa to stake a false claim to the residential premises provided for them.
12. The plaintiff and the elder brother were in permissive possession of the residential premises until 1995 without denying his title thereto, and for the first time in the year 1995, they denied his title to the residential premises. He is in possession of the open spaces abutting the residential premises. He did not commence proceedings immediately as the plaintiff commenced suit in O.S.No.114/1995 (O.S.No.53/2000) and obtained interim order of temporary injunction against his ejectment. He waited until the month of 1998 with the hope that he will be able to get the interim order in O.S.114/1995 (O.S.No.53/2000) vacated, and because the interim order was not vacated, he was constrained to initiate suit for recovery of possession of the residential premises.
13. The Civil Court framed separate set of Issues based on the respective pleadings of the parties. The Issues in O.S.No.53/2000 pertain to the plaintiff establishing his lawful possession of the subject property and interference by Sri Parashuram Singh. The Issues in O.S.No.359/1998 require Sri Parashuram Singh to (i) establish that he is the absolute owner of the residential premises, (ii) the description of this residential premises, and (iii) his entitlement for possession of the residential premises.
14. The two suits were taken up for common trial after the order dated 3.11.2001. The plaintiff examined himself as PW.1. He marked a Panchayath Paluparikath, as Ex.P.1, which is allegedly executed by the father, Sri. Basant Singh in the year 1977 in his favour with the consent of Sri Parashuram Singh. He marked the certified copy of the sale deeds executed by the father, Sri Basanth Singh, and the two brothers, Sri Parashuram Singh and Sri Jayaram Singh as Exs.P.4, P.3 and P.2 respectively. The plaintiff’s correspondences with M/s Southern Health and Financial Services Pvt. Ltd. and M/s Hydrolics Limited, and his correspondences with Sri Jayaram Singh were marked as Exs.P.5 to P.17, and the plaintiff’s Bank Statement was also marked as an exhibit. Apart from these exhibits, the plaintiff marked the photographs of the property and the licences obtained by him for the purposes of running a Cycle Mart/General store. The plaintiff produced Possession Certificate dated 25.10.1994 issued by M/s Engineering Cooperative Society Ltd., in his favour for the property in No. 364 as Ex.P.29, and this Certificate is issued for the site bearing No.364 in the lands in Sy.Nos.61,62,63,66 and 163 of Nachanahalli playa Village, Mysuru.
15. The Civil Court by its judgment dated 19.11.2002 decreed the suit for injunction in OS No. 53/2000 in favour of the plaintiff and dismissed the suit by Sri. Parashuram Singh for possession in OS No. 359/1998. However, this judgement dated 19.11.2002 was set side in the first appeals in RA Nos. 23/2004 and 22/2004 the suits restored to the board of the Civil Court for decision on merits with opportunity to Sri Parashuram Singh to led evidence.
16. Thereafter, Sri. Parashuram Singh examined himself as DW.1, and he also marked as exhibits from his side including the certified copy of the Sale Deeds executed by his father, Sri. Basanth Singh, his brother, Sri. Jayaram Singh, and himself. He produced the Revenue Records for the Subject Property and Encumbrance Certificate/s. Further, a Court Commissioner was appointed who is examined as CW.1. The Commissioner’s report, including a sketch, mahazar and notice, are marked as Exs.C.1 to C.4. However, this Report is rejected subsequently by the Civil Court vide its order dated 3.4.2013.
17. The civil Court by the impugned judgment has concluded that the plaintiff can succeed neither in his suit for injunction against respondents – the legal representatives of Sri. Parashuram Singh nor in his defense against the prayer for delivery of possession because the plaintiff has failed to establish that the subject property was a joint family property and that in a partition in the year 1977, his father, Sri Basanth Singh (with the consent of his brothers, including Sri Parashuram Singh), allotted the subject property to him. The civil Court has also held against the plaintiff on the other questions raised in his defense.
18. On appreciation of the evidence on record, the civil Court has not accepted the plaintiff’s case that the subject property was a joint family property concluding that the same is not established from the recital of the sale deeds executed by the father and the brothers, including Sri Parashuram Singh. The Civil Court has opined that the sale deeds are categorical that the father and the brothers were transferring their respective properties for discharge of their personal loans and for improvement of their own properties. If the father and brothers were living in a joint family, and the properties purchased by them were indeed owned by such joint family, the necessary recitals would have been included in the corresponding sale deeds. Further, the civil Court has opined that the plaintiff has not placed any evidence on record to establish the existence of joint family nucleus and purchase of the different extent of lands in Sy. No. 61, 62, 63, 66 and 163 using such joint family nucleus.
19. The civil Court has not accepted the plaintiff’s case based on Panchayath Paluparikath - Ex.P.1, that the subject property was a joint family property and that it was partitioned in the year 1977. The civil Court has not accepted the plaintiff’s case observing that this Panchayath Paluparikath – Exhibit P.1 is not signed by Sri Parashuram Singh or his other brothers. The civil Court has reasoned that the plaintiff, who has contended that the extent of 250 feet x 60 feet was retained as joint family property and that out of this extent each of the brothers is allotted 50 feet x 60 feet with the plaintiff being allotted the subject property, has not explained the status of the remaining extent of 100 Feet x 60 feet, and this would be a material circumstance in deciding on whether the subject property is joint family property or not. The civil Court has further concluded that even the recitals in Panchayath Paluparikath – Ex.P.1 do not establish the plaintiff’s case, and the revenue records, which are made in the name of Sri Parashuram Singh, do not refer to any partition as asserted by the plaintiff. The civil Court has concluded that without the plaintiff’s case being corroborated by any other evidence, the Panchayath Paluparikath – Ex.P.1, for reasons as aforesaid, cannot be accepted as proof of the plaintiff’s case.
20. Insofar as the plaintiff’s possession of the Residential Premises (and the Subject Property), the civil Court has concluded that even if the plaintiff is in joint possession of the subject property, or the residential premises, he cannot take advantage of the same because it does not lead to the presumption that these properties are joint family properties. The civil Court has relied on the proposition that the person who asserts that a certain property is a joint family property, or that such property was purchased from the joint family nucleus, should prove the necessary circumstances to discharge the burden of establishing the same. The plaintiff, who has failed to discharge such burden, must yield possession of the Residential Premises, which is part of the Subject property, to the respondents.
21. The civil Court has simultaneously accepted the case of Sri Parashuram Singh that he had purchased the land in Sy.No.63 from out of his own funds and he had transferred such extent retaining an extent of 250 feet x 60 feet for his own occupation, and therefore this extent would be his absolute property. The civil Court, in the light of its discussion on the circumstances in which the lands in Sy.No.61, 62, 63, 66 and 166 were purchased and later transferred, has concluded that the contradictions in the case of Sri Parashuram Singh about the circumstances in which he permitted the plaintiff to occupy the residential premises cannot create any right in favour of the plaintiff to claim ownership over the subject property.
22. The civil Court has held that once it is concluded that the subject property and the residential premises are the absolute properties of Sri Parashuram Singh, and the plaintiff, who has failed to establish that the subject property and residential premises are joint family properties, should yield possession thereof unless he is able to establish adverse possession. Insofar as the defense of adverse possession, the civil Court has concluded that because the plaintiff has neither pleaded nor placed any evidence on the essentials for establishing adverse possession, the plaintiff has failed even in this regard. Thus, the civil Court has finally concluded that the plaintiff will have to yield possession of the residential premises to the legal representatives of Sri Parashuram Singh, who were brought on record upon his demise.
23. The plaintiff’s other defense is that the Subject property and Residential Premises are part of the land in Sy No. 61, and because it is established by the Commissioner’s Report dated 31.1.2012 that the Subject property and Residential premises are in Sy.No.61 (a property purchased by his father) the claim by Sri Parashuram Singh for possession of the Residential Premises as part of Sy.No.63 would be infructuous. However, the civil Court has refused to accept this contention. The civil Court has concluded that the respective pleadings of both the parties is that the subject property and residential premises are part of the land in Sy.No.63 and in the light of these admitted facts, the dispute about the identity of the properties is not bona fide and cannot be accepted.
24. The plaintiff being aggrieved by the Civil Court’s dismissal of his suit in O.S.No.53/2000 and decreeing the suit in OS 358/98 directing him to handover possession of the residential premises to Sri Parashuram, filed appeals in RA 23/2016 and 35/2016. In these appeals, the plaintiff filed three applications under Order XLI Rule 27 of CPC seeking leave to produce a copy of the Register of admission, a Village Map and a copy of the sale deed in favour of Sri Parashuram Singh for the land in Sy. No. 63, apart from another application under Order XXVI Rule 9 of CPC for appointment of a Court Commissioner to conduct local investigation and file report.
25. The appellate Court, upon hearing the learned counsel for parties formulated the following Points for Determination:
"(i) Whether the sufficient causes are made out to allow IA No. III filed in RA No. 35/2016 and IA No. V filed in RA No. 23/2016.
(ii) Whether the sufficient cause is made out to allow IA No. VI filed in RA No. 23/2016.
(iii) Whether the appellant has made out grounds to appoint fresh commissioner as sought in IA No. IV filed in RA No. 23 of 2016.
(iv) Whether the lower court was justified in holding that there is no ambiguity regarding identification and situation of the suit property.
(v) Whether the lower court was justified in holding that the suit property was the subject property of the original plaintiff, Parashuram Singh.
(vi) What order"
26. The appellate Court has considered all the aforesaid points for consideration simultaneously and has dismissed the appeals holding in favour of the legal representatives of Sri Parashuram Singh, the respondents. The appellate Court has reappreciated the evidence in the light of the law that there could be presumption about the existence of a joint family but such presumption cannot be extended to presume the existence of the joint family properties. Further, the appellate Court has held that the plaintiff, who is required to discharge the onus of establishing joint family nucleus, has failed to discharge such burden, and has dismissed the appeals concurring with the finding of the trial Court that the plaintiff had failed to establish that the subject property and residential premises were joint family properties.
27. The appellate Court on reappreciation of the evidence on record has concluded that the plaintiff, who has admitted that the subject property was part of the land in Sy.No.63 purchased by Sri. Parashuram Singh and the extent of 250 Feet x 60 Feet was retained when he transferred the land in Sy.No.63, cannot rely upon the expression 'ours' as found in the sale deed executed by Sri. Parashuram Singh (Ex.P.2 - also marked Ex.D.1) to contend that the subject property was joint family property especially when there is no reference in the sale deed about the existence of a joint family or in the sale of other lands by the father and Sri Jayaram Singh. The appellate Court on reading the entire document has opined that this expression 'ours' in the sale deedis used as a vocative with reference to Sri. Parashuram Singh and not as an expression referring to the joint family.
28. The appellate Court, as regards the plaintiff’s case that there was dispute about identity of the subject property and residential premises, has concluded that such argument cannot be accepted for different reasons.
Firstly, the plaintiff’s entire case was based on the assertion that the subject property and residential premises were part of the land in survey No.63 that was retained by Sri Parashuram Singh when he sold the land in Sy. No.63. However, after the Court Commissioner, who was appointed vide the order dated 14.8.2013, filed his Report indicating that the subject property and residential premises were part of the land in Sy.No.61, the plaintiff is trying to take advantage of the same. This would render the plaintiff’s case dichotomous i.e. case as projected in the pleading and the evidence that the subject property and residential premises were part of land in Sy.No.63, but after the Commissioner’s Report the plaintiff is shifting his case to contend that the subject property and residential premises are part of the land in Sy.No.61.
29. The appellate Court has recorded that when the learned counsel for the plaintiff was called upon to make a choice between these two parallel submissions, the learned counsel chose to support the plaintiff’s case on the basis of the Commissioner’s Report. The appellate Court has concluded that minus the Commissioner’s Report, the plaintiff’s case that subject property and residential premises are part of land in Sy.No.61 would be sans the requisite plea and would be a tangential and belated introduction. Therefore, the dispute about the identity of the subject property and the application for appointment of commissioner would be uncalled for. The appellate Court has also concluded that permitting the plaintiff to urge a new case would be permitting the plaintiff to go beyond pleadings and evidence, and that would be against the settled law that the parties cannot be permitted to base their grounds outside the pleadings.
30. The learned counsel for the plaintiff argued that the Courts could not have decreed the suit in OS No.358/1998 for possession of the residential premises without Sri Parashuram Singh seeking for declaration of title. It would be irrefutable that the plaintiff, much before the date of the suit in OS 358/1998, had instituted the suit in OS 53/2000 (originally numbered as 114/1995) specifically asserting absolute ownership to the subject property comprising of the residential premises. As such, there was a bona fide dispute about Sri Parashuram Singh’s title to the Subject Property and residential premises. The learned counsel relied upon the decision of the Hon’ble Supreme Court in Anathulla Sudhakar vs. P.Buchi Reddy dead by Legal Heirs and others1 in support of this contention laying emphasis on Paragraph 14.
31. The learned counsel for the plaintiff argued that the impugned judgments are perverse because the Civil Court did not frame necessary Issues and the 1 AIR 2008 SC 2033 appellate Court did not frame appropriate points for determination. The Courts below should have framed necessary Issues/ Points for determination as regards the identity of the property, the subject property/residential premises being joint family property and whether the plaintiff was entitled to protect his possession on the strength of his plea of adverse possession.
32. The learned counsel argued that Sri Parashuram Singh was seeking possession of the residential premises contending that the municipal number of the residential premises is Door No.119, measuring 20 feet east to west and 40 feet north to south with the same being bounded on the East by his own property, West again by his own property, North by open space belonging to Engineers Co-operative Society and South by Main Road. Sri Parashuram Singh also contended that the residential premises is part of the portion measuring 250 feet x 60 feet. However, Sri Parashuram Singh has not placed any evidence in support of these submissions. Importantly, the Court Commissioner, who locally inspected the property, has filed his Report, stating that the Residential Premises is not part of Sy.No.63 but is part of Sy. No. 61. The Courts below, more specifically the Civil Court should have framed appropriate Issue in this regard and accorded opportunities to the parties to lead their respective evidence on the identity of the property for complete adjudication. The failure by the Civil Court to frame Issue in this regard, and the failure by the appellate Court to consider the same, has resulted in miscarriage of justice.
33. The learned counsel further argued that the plaintiff’s defense against decree for possession of the residential premises also included his defense that he had perfected his title to the residential premises by adverse possession. As the Civil Court has not framed necessary Issue in this regard, and the appellate Court, the appropriate point for determination, the Courts have failed to consider that the plaintiff was entitled to protect his possession of the residential premises on the ground of adverse possession. The learned counsel submitted in continuation that the evidence on record is that the plaintiff was in exclusive possession of the residential premises with effect from 1977 to the complete ouster of Sri Parashuram Singh and every person claiming under him from all rights to the residential premises, (and such exclusion is much prior to the date of the first suit in OS No.114/1995 (later numbered as OS No.53/2000). The plaintiff is entitled to succeed on the ground of adverse possession.
34. The learned counsel argued that the Courts below have wrongly interpreted the terms of Ex.P.2 - the sale deed executed by Sri Parashuram Singh transferring the land in Sy.No.63 retaining the extent of 250 feet x 60 feet, and Ex.P.1 dated 21.8.1977 – Panchayat Parikath executed in favour of the plaintiff with the consent of Sri.Parashuram Singh and the other brother, Sri. Jayaram Singh. This Court even in a second appeal can interfere with the finding of fact both as regards the significance of Ex.P.2 and Ex.P.1 (Parikath) dated 21.8.1977. The learned counsel for the appellant emphasized that both the Courts had erred in appreciating the evidence which had a direct bearing on the dispute between the parties viz., Ex. P1 and Ex. P2, and in such circumstance, it would be permissible for this Court, even in a second appeal, to interfere with the finding of fact provided it is for cogent and convincing reasons. In support of this argument, the learned counsel relied upon the decisions of the Hon’ble Supreme Court in (i) Ishwardas Jain (Dead) through LRs. vs. Sohan Lal (Dead) by LRs.2) (ii) Ramlal and another vs.
2 AIR 2000 SC 426 Phagua and others3 and (iii) D.R.Rathna Murthy vs. Ramappa4.
35. The learned counsel argued that both the terms of Ex.P.2 - the Sale Deed executed by Parashuram Singh for the sale of the land in Sy. No.63 retaining an extent of 20 feet x 60 feet and Ex.P.1 – Panchayat Parikath executed by the father in favour of the plaintiff, should have been considered in the light of the pleadings by Sri Parashuram Singh in OS 358/1998 and OS 53/2000. Sri Parashuram Singh’s plea in OS 358/1998 is that he was engaged in trading old wooden furniture including windows and doorframes, his father joined him and both were earning from such venture. It is from the income from this venture that the land in Sy.No.63 as well as the lands in Sy.Nos.61, 62,66 and 163 were purchased. But in his written statement in OS No.114/1995 (New No.53/2000) he is contending 3 AIR 2006 SC 623 4 2011 2 SCC 158 that his father was not doing any work and was wailing away his time. He was alone cultivating the aforesaid lands and therefore, the undisputed owner of these lands had transferred these lands in favour of Sri Parashuram Singh, his father Sri Basavant Singh and his brother Jayaram Singh. This contradictory plea showed that Sri. Parashuram Singh was not bona fide in his assertion. Further, this contradictory plea should be read with the admitted facts that all the aforesaid lands were purchased on the same day under separate sale deeds, transferred in favour of the Engineers Co- operative Society and that the plaintiff and Sri.Parashuram Singh were residing in separate residences constructed in the property retained. These circumstances established that the properties were joint family properties and therefore, an extent of 250 feet x 60 feet was retained for the benefit of the family and in the year 1977, the father had executed Panchayat Parikath (Ex. P.1) in favour of the plaintiff with the consent of others conferring absolute title to the subject property in favour of the plaintiff.
36. The Courts below, the learned Counsel emphasized, failed to consider these circumstances which would be material insofar as the decision on whether the subject property and residential premises were joint family properties. These circumstances establish that the subject property and residential premises was joint family property and the plaintiff, who is admittedly in possession of the property, would be entitled to not only injunction but also resist the prayer for delivery of possession.
37. This Court on hearing the learned Counsel for the plaintiff formulated the following substantial questions of law:
"a) Whether the courts below are justified in decreeing the suit O.S.No.359/1998 in the present form without the plaintiff – respondent seeking declaration of title when the title of the plaintiff has been disputed by the appellants - defendants even prior to the filing of the suit.
b) Whether the courts below are justified in decreeing the suit in O.S.No.359/1998 when the respondent-plaintiff has not proved the identity of the suit property.
c) Whether the judgments of the Courts below are opposed to law in view of not framing proper Issues/Points for consideration in the case.
d) Whether the courts below have wrongly interpreted Exhibit P.2 executed by the plaintiff - respondent in O.S. No.359/1998 to conclude that he had retained for his own use an extent measuring 250’ x 60’ in Survey No.63 of Nachanahalli Palya village, Mysuru.
e) Whether the appellant-plaintiff is entitled to succeed in the suit in O.S.No.53/2000 for permanent injunction in the event he were to succeed in the Second Appeal against the concurrent judgment and decree in O.S.No.359/1998.”
38. The learned counsel for the legal representatives of Sri Parashuram Singh, the respondents in these appeals, was heard on these substantial questions with the opportunity to the learned counsel for the plaintiff to make rejoinder submissions, and the appeals were taken up for final hearing as requested by the learned counsel who submitted in unison that the parties were agitating for vindication of their rights for over two decades and lower court records are also received.
39. The learned counsel for the legal representatives of Sri. Parashuram Singh contested the submissions by the learned counsel for the appellant emphasizing that the aforesaid questions would not arise in the facts and circumstances of the case, and the reasons assigned by the Courts below. He vindicated his submissions arguing that the ground that the suit for possession without the relief of declaration would be impermissible is being urged for the first time before this Court. The question whether there is a serious dispute about title to the property will have to be adjudicated as a question of fact based on the rival pleas and the evidence on record in support thereof. As such, this would be a mixed question of fact and law. Therefore, cannot be raised for the first time in second appeal belatedly at this stage. In any event, it is settled law that when there is no serious cloud over title, a party cannot be compelled to file a suit for declaration of title. The learned counsel relied upon the decision of the Hon’ble Supreme Court in Muddasani Venkatanarasaiah (Dead) through LRs v Muddasani Sarojana5 in support of the proposition that unless there is a serious cloud on title a party can maintain a suit for possession while relying upon the decision in Anathulla Sudhakar supra.
5 (2016)12 SCC 288 40. The learned counsel refuted the submissions by the learned counsel for the plaintiff that there is evidence on record to substantiate the plaintiff’s case that the subject property and residential premises are joint family properties and the Courts below have failed to consider such evidence in proper perspective and as such, this Court could interfere in the second appeal. Similarly, the learned counsel refuted the submissions that there is a serious dispute about the identity of the Subject Property. The learned counsel argued that no substantial question arises in these regards in the light of the discussion by the Courts below.
41. The learned counsel argued that the plaintiff has admitted in unequivocal terms that the deceased Sri Parashuram Singh transferred the land in Sy. No. 63 for valuable consideration and utilized the sale proceeds for his own use. However, insofar as the property that is retained while selling the land in Sy.No.63, the plaintiff wants to contend that it is for the benefit of the joint family. This contention is not only a contention of convenience but also amounts to approbating and reprobating.
42. The learned Counsel canvassed that the plaintiff was a minor at the time of the purchase of the lands in Sy. No. 61, 62, 63, 66 and 163 and the sale of these lands while retaining the extent of 250 Feet x 60 Feet. As such, the plaintiff could not have been acquainted with the circumstances surrounding the transactions, including Sri Parashuram Singh retaining an extent of 250 feet x 60 feet. His evidence is therefore of no significance. Sri Jayaram Singh, who has joined the plaintiff in filing these appeals was a major at the time of transactions, and in fact he is a party to the purchase and sale of the land in Sy No. 61. The plaintiff should have examined Sri Jayaram Singh, but he has not been examined by the plaintiff. The plaintiff has thus kept the best evidence out of record, and as such he cannot contend that the subject property and residential premises are joint family properties.
43. The learned counsel argued that a Court Commissioner was indeed appointed to visit the subject property and residential premises, and this Court Commissioner also filed his Report. However, both the plaintiff and Shri Parashuram Singh filed objections to such Report. The Civil Court by its order dated 31.1.2012 rejected the Commissioner’s Report on twin grounds that he had not adhered to the Memo of Instructions and had not inspected the land in Survey No. 63 but inspected the land in Survey No. 61. The Courts below have, on the basis of evidence on record, concluded that there cannot be any dispute about the identity of the property in view of the plaintiff’s own pleadings and evidence that Sri Parashuram Singh alone retained a portion of the land in Sy.No.63 purchased by him and neither the father nor the brother retained any portion in the corresponding lands purchased by them. The Courts below have also concluded that the plaintiff cannot be permitted to take up such plea in the absence of any pleading to substantiate that there is dispute about identity of the subject property and residential premises because the same are in Survey No.61 and not 63. The Courts below have accepted the evidence that the residential premise is part of the subject property, which in turn is part of the extent measuring 250 feet x 60 feet, and extends up to the electrical pole situated to its west because that this would be in accordance with the boundaries as mentioned in the sale deed executed by Sri Parashuram Singh retaining the aforesaid extent and also the plaintiff's own oral evidence on record. As such, the Courts finding in this regard is based on evidence and in accordance with law. Therefore, there cannot be any substantial question in this regard, and the other substantial questions as framed by this Court would also not arise.
44. The first segment of the controversy between the parties in the present appeal, and therefore the first question, revolves round the question whether Sri Parashuram Singh could have filed only a suit for possession without seeking declaration of title. The Hon’ble Supreme Court in Anthula Sudhakar v. P. Buchi Reddy supra has clarified that a prayer for declaration of title will be necessary only if the denial of title by the defendant or challenge to the plaintiff’s title raises a cloud on title of the plaintiff to the property, and a cloud is said to raise over a person’s title when some apparent defect in his title to a property, or when some prima facie right of third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. The Hon’ble Supreme Court in its subsequent decision in Kurella Naga Druva Vudaya Bhaskar Rao v. Galla Jani Kamma6 has held that “A mere claim by the defendant that he had perfected his title by adverse possession, does not mean that a cloud is raised over the plaintiff’s title and that the plaintiff who is the owner, should file a suit for declaration of title. Unless the defendant raises a serious cloud over the title of the plaintiff, there is no need to file a suit for declaration. The plaintiff had title and she only wanted possession and therefore a suit for possession was maintainable”. This proposition is reiterated in Muddasani Venkatanarasaiah (Dead) through LRs., v. Muddasani Sarojana Supra.
45. It follows from this enunciation of law by the Hon’ble Supreme Court that not every denial of title would impel a person to seek declaration of title, and to force a person to file a suit for declaration, the denial of title should raise a cloud on title and such cloud on title 6 (2008) 15 SCC 150 must be serious, or in other words, real. The cloud on a person’s title to a property would be if the defendant is able to establish some colour of title in him/ her, and also establish that such colour of title in him, or her, is real. The test, therefore, would be whether the person denying the title is able to show a real claim of title to the subject property. If such claim is not real or genuine, the suit for possession cannot be dismissed on the ground that no relief for declaration of title is made.
46. The plaintiff’s case is that he has instituted prior suit for permanent injunction in OS No. 114/1995 (renumbered as OS No. 53/2000) and in this suit he had claimed title to the subject property under a partition as per Exhibit P1, a Panchayath Paluparikath (which according to the plaintiff, is executed by the father in his favour, with the consent of Sri Parashuram Singh and the other brother, Sri Jayaram Singh) and therefore, Sri. Parashuram Singh had to file suit for declaration of title. As such, it will have to be examined whether the plaintiff is able to establish a real claim to the Subject property and residential Premises.
47. The plaintiff in the suit in OS No.114/1995 pleads estoppel based on partition, and in his written statement in the subsequent suit in OS No. 359/1998 filed by Sri Parashuram Singh for possession of residential premises, he pleads partition and also adverse possession. The plaintiff does not dispute the manner in which the different lands in Sy.Nos.61, 62, 63, 66 and 163 of Nachanahalli Palya, Mysuru South, Mysuru, including the land in survey No. 63, were purchased and later transferred retaining an extent of 250 feet x 60 feet. The plaintiff acceding to the aforesaid, pleads that the purchase/ sale, and the retention of the extent measuring 250 feet x 60 feet, was for the benefit of the joint family, and a subsequent partition thereof amongst the three brothers at the instance of the father to avoid disputes amongst brothers.
48. The Courts below have concluded that the plaintiff is unable to establish that the subject property and residential premises are joint family properties for a variety of reasons, and these reasons amongst others, could be listed as follows. The fact that the sale deed executed by Sri Parashuram Singh for the land in survey No. 63, retaining the extent of 250 feet x 60 feet, does not refer to any joint family. The plaintiff is not able to explain the utilisation of the entire extent measuring 250 feet x 60 feet and he only states that this extent is divided into three parts each measuring 50 feet x 60 feet without explaining what happens to the remaining extent of 100 feet x 60 feet. The plaintiff was a minor at the time of purchase/sale and retaining of the extent of 250 feet x 60 feet. The plaintiff could not have been a better witness than his brother, Sri Jayaram Singh. But Sri Jayaram Singh is not examined as a witness though he has joined the plaintiff in conducting the proceedings before the courts below and in filing the present appeals. The plaintiff has purchased a site from the Engineers Housing Co- operative Society as per Exhibit P.29 and Exhibit P.18 and has constructed commercial premises. The Courts below for these, and for the reasons recorded by the Court below on Exhibit P.1 as well as the use of the expression 'ours' in the sale deed as per Exhibit P2, have concluded that the plaintiff is not able to establish real claim to these properties. The Courts below have on appreciation of evidence concluded that the plaintiff’s case that the subject property and residential premises are joint family properties cannot be accepted. This court cannot interfere with a finding of fact by Courts below until such finding is perverse either because it is not based on evidence or is because some material evidence is overlooked.
49. While on this question, this Court is of the opinion that the plaintiff cannot be permitted to contend, for the first time in this second appeal, that the suit for possession without the prayer for declaration of title could not have been decreed. As contended by the learned counsel for the respondents, the question whether there is serious cloud on title, for the reasons already discussed, would essentially be a mixed question of fact and law, and any adjudication thereon therefore, will have to be preceded by appropriate opportunity to the parties to lead evidence on the question after necessary Issue in this regard. Or alternatively, the parties must have gone to trial with the knowledge that this would be one of the questions that would be adjudicated. It is nobody’s case that such defense was taken or evidence is led with the knowledge that such question would be adjudicated. Therefore, the first question would not arise even for this reason.
50. The plaintiff’s next case is that the real controversy between the plaintiff and Shri Parashuram Singh is about whether the subject property/residential premises is a joint family property or not, whether Sri Parashuram Singh is able to establish identity of the residential premises without any doubt, and whether the plaintiff is entitled to protect his possession of the residential premises on the ground of adverse possession. The Courts below should have formulated appropriate Issues and Points for Consideration in this regard, but they have failed to raise relevant Issues and Points for Consideration in these regards, and therefore, the impugned judgements and decree cannot be sustained.
51. The Hon’ble Supreme Court in Nedunuri Kameswaramma v. Sampati Subba Rao7, while considering the argument by one of the parties that 7 AIR 1963 SC 884 there was prejudice because a decision on a specific controversy was rendered without an Issue in this regard, has held as follows:
“No doubt, no Issue is framed, and one, which is framed, could have been more elaborate; but since the parties went to trial fully knowing the rival case and led all the evidence not only in support of the contentions but also in refutation of those of the other side, it cannot be said that the absence of an Issue was fatal to the case, or that there was mistrial which vitiates proceedings.”
Insofar as the proper formulation of Points for Consideration as required under the provisions of Order XLI Rule 31 of the Code of Civil Procedure, the Hon’ble Supreme Court in H Siddiqui vs. A Ramalingam8 has concluded as follows:
8 (2011) 4 SCC 240 “The said provisions provide guidelines for the appellant court as to how the court is to proceed and decide the case. The provisions should be read in such a way as to require that the various particulars mentioned therein should be taken into consideration. Thus, it must be evident from the judgement of the appellant court that the court has properly appreciated the facts/evidence, applied its mind and decided the case considering the material on record. It would amount to substantial compliance with the said provisions if the appellate court's judgement is based on the independent assessment of the relevant evidence on all material aspects of the matter and the findings of the appellate court are well founded and quite convincing. It is mandatory for the appellate court to independently assess the evidence of the parties and consider the relevant points which arise for adjudication and the bearing of the evidence on those points. Being the final court of fact, the first appellate court must not record mere general expression of concurrence with the trial court judgement rather it must give reasons for its decision on each point independently to that of the trial court. Thus, the entire evidence must be considered and discussed in detail.
Further, the Hon’ble Supreme Court has also referred to its decision in G. Amalorpavam v. R C Diocese of Madurai9 wherein it has been held that the question of substantial compliance with the provisions of Order XLI Rule 31 of Code of Civil Procedure has to be determined from the nature of the judgement delivered in each case, and non-compliance with the provisions may not vitiate the judgement and make it wholly void and may be ignored if there is substantial compliance and the higher appellate court is in a position to ascertain the findings of the lower appellate court.
9 (2006) 3 SCC Page 224 52. The case on behalf of the plaintiff as regards framing of Issues and formulation of points for determination on the question of the subject property/residential premises being joint family property, on the identity of the subject property/residential premises and on adverse possession, will have to be examined in the light of these settled propositions and the reasons assigned by both the Courts below in their respective judgements.
53. The reasons delineated by the Courts below in support of the concurrent conclusion that the subject property and residential premises are not joint family properties have already been discussed, and in addition thereto the Courts below have also examined the significance of other circumstances relied upon by the plaintiff in support of his case that the subject property and residential premises are joint family properties. The first of the circumstances being the circumstances in which the land in survey Nos. 61, 62, 63, 66 and 163 have been purchased by the father, Sri Basanth Singh, and the brothers, Sri Parashuram Singh and Sri Jayaram Singh and the transfer of these lands on the same day by them with only Sri Parashuram Singh retaining the extent of 250 feet x 60 feet. The second of the circumstance being the use of the word 'ours' in the sale deed executed by Sri Parashuram Singh while transferring the land in Survey No. 63 retaining the extent of 250 feet x 60 feet. The third contention being the contradictions in the pleadings by Sri Parashuram Singh. The Courts below have recorded reasons as to why these circumstances would not enure to the advantage of the plaintiff.
54. The Courts have considered that in none of the three sale deeds executed by the aforesaid, there is any reference to the existence of joint family, and concluded that this would, in the light of the evidence on record, be material and significant insofar as the plaintiff’s case that the subject property/ residential premises are joint family property. Insofar as the use of the word 'ours' in the sale deed executed by Sri Parashuram Singh, the Courts below, more specifically the appellant Court, on reading terms of the sale deed, have concluded that this expression is used as a vocative and therefore, the plaintiff cannot take advantage of the same. In fact, the appellate Court has concluded that, in the absence of definite material to establish the existence of joint family nucleus/funds, the contention put forth on behalf of the plaintiff cannot be accepted.
55. In the light of the evidence recorded by both the plaintiff and Sri. Purushuram Singh, and the submission made on their behalf before the courts below, it can neither be said that the plaintiff did not have the knowledge of the kind of controversy that was being agitated nor that the plaintiff did not have the opportunity to lead necessary evidence. Similarly, it cannot be said that because Issue in this regard was not framed, or Point for Determination was formulated, the Courts below have not considered the controversy. The Court below, though no specific Issue is framed or Point for Consideration is framed, have considered the evidence on record and decided on each of the controversy. As such, no substantial question arises on such ground.
56. Further, on Ex.P2, the Courts below being the final arbiters of questions of fact, have concluded that Exhibit P2 cannot be read to conclude that the extent of 250 feet x 60 feet was retained as a joint family property. The Courts below have rendered their finding in this regard based on the appreciation of evidence. It is settled law that inference of facts from recitals in a document, or construction of a document, could be questions of fact and no substantial question of law as contemplated under Section 100 of the Code of Civil Procedure would arise in these regards. A useful reference in this regard could be made to the decision of the Hon’ble Supreme Court in Hero Vinoth v. Seshammal.10 Therefore, there is no room for reappreciation of evidence to revisit the inference drawn from the recitals in Ex. P2 or the construction of the document in the second appeal.
57. The learned counsel, while arguing in support of the submission that the Courts below ought to have read Exhibit P2 as proof of the subject property/residential premises being joint family property, argued that the Courts have failed to consider that the lands in survey No. 61, 62, 63, 66 and 163 were purchased simultaneously by all the three on the same day and they also simultaneously transferred 10 2008 (12) SCC 796 these lands on the same day. This demonstrated that extent measuring 250 feet x 60 feet was retained for the benefit of the family and as such, the subject property and residential premises were joint family property. The learned counsel also emphasised that the Courts below should have considered that Sri Parashuram Singh had taken contrary pleas on the circumstances preceding the purchase of the land in survey No. 61, 62, 63, 66 and 163. These circumstances, the learned counsel for the plaintiff argued should have been considered in conjunction with the other evidence, and because this evidence has not been considered, there would be substantial question of law.
58. However, these circumstances which are emphasized by the learned counsel for the plaintiff, including the contrary pleas by Sri Parashuram Singh about the circumstances leading to the purchase of the aforesaid lands under the three separate sale deeds by him, his father and brother will have to be considered in the light of the other circumstances accepted by the Courts below. The circumstances, amongst others, being no reference to the existence of any joint family in Exhibit P2. The plaintiff admitting that the sale proceeds received were individually utilized by each one of the transferee including Sri Parashuram Singh. The plaintiff is not able to establish the existence of any joint family nucleus and non-examination of Sri Jayaram Singh. The contradiction in the pleadings, as reasoned by the Courts below cannot overwhelm the material circumstances. When thus considered, the finding by the Courts below on Exhibit P2 cannot be termed perverse or contrary to the evidence on record or that the courts below have overlooked material evidence. This Court is of the considered opinion that the reasons assigned by the Courts below are cogent. The conclusion by the Courts below are not perverse in this regard.
59. The Courts below also have elaborately considered the evidence on record as regards the identity of the subject property/residential premises in the light of the plaintiff’s own plea, and evidence. The plaintiff is categorical that these properties are carved out of the land in survey No. 63 and form portion of 250 feet x 60 feet that was retained by Sri Parashuram Singh in the land in survey No. 63. The plaintiff’s admission is that the extent of 250 feet x 60 feet extends up to the electrical pole to its West and the recital in the sale deed as per Ex. P2 is also the same. The plaintiff's further admission is that he is in possession of property bearing Sy. No.364 which is allotted to him vide Exhibit P-29 and that this property is beyond the said electrical pole. The courts below have also considered that the bogey of dispute on identity is a defense developed midway based on the Commissioner’s Report without any pleadings or evidence. The finding by the Courts below that the plaintiff cannot be permitted to raise this bogey without necessary pleadings and evidence, in the considered opinion of this court, is justified in view of the settled law relied upon by the courts below that a party to the proceedings cannot be permitted to traverse beyond his or her pleadings. Therefore, there is no room for interference on this ground either.
60. The plaintiff, except for taking up a bald plea of adverse possession, has not pleaded or proved the essentials to succeed in the defence of adverse possession, especially in the light of his own case that the subject property and residential premises are joint family properties. In the absence of requisite pleadings, and evidence, given his own case of joint family property, the plaintiff cannot succeed unless he pleads and proves actual physical and exclusive possession and also establish the animus possidendi to hold the property as the absolute owner to the exclusion of the actual owner. This would be an inviolable condition to allow the defense of adverse possession because a person pleading adverse possession can claim no equity as relying upon adverse possession she/he tries to defeat the rights of the true owner. The learned counsel for the respondents viz., the legal representatives of the deceased Parashuram Singh is therefore justified in relying upon the decision of the Hon’ble Supreme Court in Karnataka Board of Wakf v. Government of India and others11. The Courts below have negated the defence of adverse possession because the plaintiff has neither pleaded nor proved the essentials of an adverse possession plea.
61. This Court is of the considered opinion that the evidence on record, and the manner in which it has been dealt with by the Courts below in these regards, 11 (2004) 10 SCC 779 leave no room for doubt that the parties to the proceedings have gone to trial before civil Court, and have also contested the appeals before the appellate Court, being aware of the nature of the dispute between them. The Courts below also have, in substantial compliance with the provisions of Order XLI Rule 31 of the Code of Civil Procedure decided on the real controversies between the parties based on evidence on record and in accordance with the settled principles of law. Therefore, the plaintiff cannot succeed in the challenge against the impugned judgements and decree on the ground that appropriate Issues or Points for Consideration were not framed/formulated, or that substantial questions arise as regards identity of the subject property/ residential premises or in reading Exhibit P2.
For the foregoing reasons, the appeals are dismissed. However, in view of the fact that the plaintiff will have to put the respondents in vacant possession of a residential premise, the plaintiff is permitted four months from the date of receipt of certified copy of this judgment to vacate and handover vacant possession of the schedule premises.
SD/- JUDGE nv