IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO REGULAR SECOND APPEAL NO.2470/2006 BETWEEN:
SRI H.R. NANJUNDAIAH, AGED 62 YEARS, S/O LATE H.P. RAMAIAH, RESIDENT OF : HONNAVALLI, TIPTUR TALUK, TUMKUR DISTRICT-572 201 SINCE DEAD BY HIS LRS.
A) SMT. HEMAVATHI N., W/O. LATE H.R. NANJUNDAIAH AGED ABOUT 64 YEARS B) SRI PRASHANTH KUMAR H.N., S/O. LATE H.R. NANJUNDAIAH, AGED ABOUT 39 YEARS, C) SMT. PRATHIMA H.N., D/O. LATE H.R. NANJUNDAIAH, AGED ABOUT 37 YEARS, ALL ARE RESIDING AT HONNAVALLI, TIPTUR TALUK, TUMKUR DISTRICT-572 201.
(BY SRI B.J. MAHESH, ADVOCATE FOR M/S. EESH AND EESH ASSTS.) AND:
1. H.R. APPANNAIAH, S/O. LATE A. RAMAIAH, AGED 73 YEARS, 2. H.R. SHANKARANARAYANA, S/O LATE A. RAMAIAH, AGED 63 YEARS, 3. H.R. HARIHARA RAO, S/O. LATE A. RAMAIAH, AGED 58 YEARS, 4. H.R. JAGADISH, S/O. LATE A. RAMAIAH, AGED 53 YEARS 5. SMT. PARWATHAMMA, W/O. LATE A. RAMAIAH, AGED 93 YEARS, ... APPELLANTS ALL ARE RESIDENTS OF HONNAVALLI, TIPTUR TALUK, TUMKUR DISTRICT-572 201 ... RESPONDENTS (BY SRI K.S. RAMASWAMY IYENGAR, ADV., FOR CAVEATOR R2;
MS. VARSHA R. IYENGAR, ADV., FOR R3 & R4, R1-SERVED APPEAL DISMISSED AGAINST R5 V/O. DTD.16.04.2015) THIS REGULAR SECOND APPEAL IS FILED U/S.100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 29.06.2006 PASSED IN RA NO.15/1998 ON THE FILE OF THE CIVIL JUDGE (SR.DN.) AND JMFC, TIPTUR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 07.02.1998 PASSED IN O.S. NO.50/1994 ON THE FILE OF THE CIVIL JUDGE (JR.DN.) AND JMFC, TIPTUR.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is directed against the judgment and decree passed by the learned Civil Judge (Sr.Dn.) and JMFC at Tiptur dated 29.06.2006 in R.A. No.15/1998, wherein the appeal filed by the defendants/respondents came to be allowed and the judgment and decree passed in O.S. No.50/1994 on 07.02.1998 was set aside, in the result the suit of the plaintiff-appellant came to be dismissed.
2. The learned Civil Judge (Jr.Dn.) in O.S. No.50/1994 decreed the suit in favour of the plaintiff/appellant, thereby declared his title over the suit schedule properties, permanently restraining the defendants/respondents from interfering with the possession of the schedule properties by the plaintiff. Thus, it is the plaintiff, who has come in this appeal.
3. In order to avoid confusion and overlapping, the parties are referred in accordance with their status or ranking before the trial Court.
4. The plaintiff filed a suit in O.S. No.50/1994 claiming the suit schedule properties bearing Khatha Nos.451 and 439 as his ancestral. However, it is stated that property number was initially wrongly mentioned as 438 latter it was settled. The source of title are as under:
(i) Item No.1 of the properties bearing Khatha No.451 belonged to H.P. Ramaiah S/o. Puttanna, father of the plaintiff and it devolved upon the plaintiff.
(ii) Item No.2 of the suit schedule properties belonged to one Subbaraya S/o. Krishnappa and it was given to plaintiff’s father for residence. Accordingly, since 30 years plaintiff’s family have been residing in the said item No.2 of the suit schedule properties.
5. Thus, it is stated that the plaintiff’s family has been in continuous possession and enjoyment of the said item No.2 of the suit schedule properties. It is further stated that defendant No.2 purchased item No.2 in the year 1961, but neither he got changed the Khatha of the said schedule property in his name nor claimed the possession of suit schedule property No.2. (In the context the averments made in item 2 mean otherwise in respect of possession). Thus, plaintiff claims that he is in possession and enjoyment of item No. 2 of the suit schedule properties for over more than 12 years. Hence, the right of the 2nd defendant over item No.2 has lost. It is stated that item No.2 of the schedule properties has been continuously in possession of the plaintiff for over more than 35 years as of his own and plaintiff has perfected his title by way of adverse possession.
6. The plaintiff claims that the defendants have no right over the schedule properties, but having indulging its acts of interference in various manner and has become the threat to the rights of the plaintiff over the schedule properties. Thus, he claims ownership of the schedule properties.
7. The defendant Nos.1 and 2 filed their written statement and contended that plaintiff is a right-less person over the suit schedule properties. Further, they denied the averments made in respect of the schedule properties as hostile to the ownership and possession by the plaintiff. However, they claim to be the owners of the schedule properties. Thus, it is a suit simplisitor for establishing possession of the schedule properties continuously and the claim of perfecting title by way of adverse possession.
8. The learned trial Judge framed the issues regarding the claim of the plaintiff to the effect as claimed by plaintiff’s title, interference by the defendants, completing the period of possession for perfecting the title and title regarding adoption on the score that the 1st defendant claimed the right over the adoptive family in respect of item No.1 of the schedule properties.
9. In this connection, the trial Judge was accommodated with the oral evidence of PWs.1 and 2 namely; plaintiff and another witness. The defendants examined three witness namely; DW1 - H.R. Shankaranarayana, DW2 – Dasaraju and DW3 – Hutchanna. Exs.P1 to P28 are the documents exhibited from the side of the plaintiff and Exs.D1 to D7 from the side of the defendants.
10. The learned trial judge decreed the suit in favour of the plaintiff and declared the plaintiff as the owner of the schedule properties and restrained the defendants by means of permanent injunction from interfering with the possession and enjoyment of the plaintiff over the schedule properties.
11. Being aggrieved by the judgment and decree of the learned trial Judge in O.S.No.50/1994 dated 07.02.1998, the defendants challenged the same before the learned Civil Judge (Sr.Dn.) and JMFC Tiptur in Regular Appeal No.15/1998. Learned first Appellate Court found the averments regarding the title of the plaintiff over the schedule properties was not maintainable in law and the plaintiff had no locus to file a suit for possession or title on the strength of the grounds alleged by him and allowed the appeal. Thus, by virtue of disposal of the regular appeal, the judgment and decree passed by the learned Civil Judge (Jr.Dn.) in O.S. No.50/1994 was set aside. Consequently the suit of the plaintiff was dismissed. Thus, the suit was dismissed, which is challenged in this appeal by the plaintiff-appellant, raising the following substantial questions of law.
1) Whether the first appellate court is justified in reversing the well considered judgment and decree of the trial court, which was based on the proper appreciation of evidence on record?
2) Whether the first appellate court is justified in refusing to place reliance on revenue documents produced by the appellate on the ground that revenue documents are not documents of title, when the appellant has produced the same only to prove the possession over the suit schedule properties?
3) Whether the first appellate court is justified in holding that plaintiff has not proved the animus though the averment made in the plaint clearly establishes the animus?
4) Whether the appellate court is justified in interpreting the averments made in the plaint as if the appellant’s claim over the suit schedule property as on ancestral property instead of only the possession being ancestral in nature?
5) Whether the first appellate court is justified in not understanding the averments of the plaint that suit item no.1 property is ancestral which means the possession of the plaintiff over the suit item no.1 is inherited from his ancestor?
6) Whether the first appellate court is justified in allowing the appeal filed by the defendant/respondents?
7) Can the first appellate court assume a contrary fact wherein the 1st defendant failed to contravene the pleadings of the plaintiff by not examining himself?
12. Learned counsel Sri Mahesh for the plaintiff- appellant would submit that the revenue documents and the factual evidence on record themselves spoke that plaintiff had established the ownership over the schedule properties and he is absolutely entitled for the relief of declaration of injunction that was rightly granted by the learned trial Judge.
13. Learned counsel would further submit that the learned Senior Civil Judge Tiptur erred completely in reversing the judgment passed by the trial Judge. Further, he would submit that though the prayer made regarding first schedule property is to the effect that he got right over the item No.1 of the schedule properties through succession and adverse possession. In case of item No.2, plaintiff’s father was inducted into the possession by one Subbaraya who did not object for plaintiff’s father entering the possession and his continuity.
14. Learned counsel for defendants Sri Ramaswamy Iyengar would submit that declaration of title is a extraordinary remedy which would be granted to a party when the Court get satisfied regarding establishing of title step-by-step by the party. Learned counsel would further contend that the plaintiff should have been explained with cogent evidence with regard to his possession, the date of entry into possession, the nature and colour of entering the possession, remaining there continuously without interruption holding his hostile entire including the owner.
15. In this connection, it is necessary to mention the concept of adverse possession and pre-existing right or ownership cannot go in hand and hand. No doubt, a person who claims the adverse possession cannot include permissive possession and also the one claiming under ownership through other means as original or derivative is entitled to possess acquired ownership in its own way, but cannot blow hot and cold in a same time. Adverse possession leading to perfection of title the invariable factor that is necessary is, a non-owner claiming a property for holding the possession in adverse to the entire word including the owner of the property.
16. The sources of title of the plaintiff claimed in the plaint, regarding item No.1 of the schedule property is as under:
“Land measuring 35 feet x 120 feet, situated at Honnavalli Village, Honnavalli Hobli, Tiptur Taluk, bearing Khata Nos.451 and 507 being bounded on the East by passage and the house of Krishnappa, West by defendants’ property, North by street and on the South by Well and passage.”
17. The deriving of title to the plaintiff as stated in the plaint is as under:
Earlier the property was under the ownership of one Subbaraya and it was given to the father of the plaintiff H.P. Ramaiah for residence and it was occupied by the plaintiff’s father and meanwhile it was continued by the plaintiff. Thereafter the said Subbaraya or his family did not take back the schedule property from the plaintiff. It is also stated that the 2nd defendant in the year 1961 got a sale deed executed in his favour, but Khatha was not got transferred into his name in time and by virtue of his abandoning of his property it was effected in favour of the plaintiff. For the rest is the plaintiff wants plaintiff’s title in several words regarding the possession which is enthuse and hostile.
18. Among the documents that are filed by the plaintiff, the title deed is relied upon by the plaintiff. In so far as defendants are concerned, Ex.D1 – Registered Adoption Deed wherein the plaintiff claimed mutative was effected in his favour.
19. It is necessary to mention the fact that by adverse possession the plaintiff admits that he is not owner at the time of commencement of the possession. He has derived title from the owner in between, but he is in exclusive and actual possession of the property for the stipulated period and in the meanwhile there was no interference or interruption of the owner who knows that the person in possession is continuing to be sold. If the possession is disconnected in the middle it cannot be attached. But in so far as item No.1 of the schedule property is concerned, the plaintiff backs and enthuse and as owner of the property as he inherited the same from his ancestors.
20. In so far as item No.2 of the schedule properties is concerned, the plaintiff claims that the property belonged to one Subbaraya who had given the possession of the second item of the schedule properties to father of the plaintiff and thereafter the plaintiff continued in possession of the property for the period of more than 30 years and their possession was not hostile to each other. On the other hand, continuous un- interrupted enthuse and adverse for a period of more than 30 years. In this connection on a query by this Court, the learned counsel would submit that Subbaraya had permitted the plaintiff to be in possession of the property.
21. Issue No.1 framed by the learned trial Court is to the effect of placing onus on the plaintiff. The proving of ownership by the plaintiff in the capacity of ancestral property, thus, any single or isolated claim of ownership through other sources would be diagonally destructive effect to the person who banks on adverse possession in respect of the ownership. The plaintiff who has reiterated averments of the claim has been cross- examined and he reiterates the contention in the plaint. This Court considers aspect in accordance with the established principle of adverse possession.
22. On going through the pleadings and evidence, it could be seen that no where the plaintiff firmly asserts his stand on the process of acquisition of ownership through possession.
23. A person who is in possession of the property continuously for long time has generally may not be having document to show his ownership in the beginning, thus considering the various set of circumstances based on the practicality and reliability.
24. In this Connection, in so far as the possession is concerned it is necessary to mention that there are no structures or buildings reported over the schedule properties or any structures which are permanently embedded to the earth to establish act of possession in the circumstances of the case.
25. A person in possession can defend this act of being in possession and resist the steps or attempts against him to be prejudicial to his interest of adverse possession. From the above, no doubt it is not necessary that a person who specifically seek adverse possession in perfecting title sufficely pleads the ingredients such as continuous possession without interruption exclusive and hostile. Thus in so far as first property is concerned, the plaintiff does not have a ground and in so far as the second item of schedule property is concerned, the very learned counsel for the appellant/plaintiff would submit that the father of the plaintiff was inducted the plaintiff into the possession. However, there is no corroborative evidence to the said effect.
26. More particularly, if the sources of entering possession is permissible or license or contractual right or obligation may not include the concept of adverse possession. On the other hand, neither the pleadings nor the evidence nor the documents relied upon by the plaintiff regarding the concept of adverse possession to enable the plaintiff perfecting title is not established.
27. The learned trial Judge committed a grave error in not understanding the principles for recognizing adverse possession, thereby a person in possession would perfect his title over the property. However, the learned first Appellate Court has rightly reasoned and allowed the appeal. There are no grounds or circumstances to consider the appeal in favour of the appellant. The judgment and decree dated 29.06.2006 passed in R.A. No.15/1998 does not call for interference. Thus appeal is devoid of merits and dismissed.
No costs.
Sd/- JUDGE Sbs*