KHENIANNA SHIVAPPA GAJAKHOSH v. SAYYADSAB ALLAUDDIUSAB KALIGAR
1990-07-06
M.P.CHANDRAKANTARAJ
body1990
DigiLaw.ai
CHANDRAKANTHARAJ, J. ( 1 ) THIS is the 6th defendant's appeal against the concurrent findings of the Courts below. ( 2 ) 1st respondent-plaintiff Sayyadsab Allauddinsab-Kaligar brought original suit 249 of 1982 in the Court of the Munsiff at Lakshmeswar, dharwad District. He prayed for a declaration that suit property situated at Lakshmcswar, bearing CTS No. 4322 was his and that he was the absolute owner thereof and his title thereto may be declared as well as for possession of that property from the defendants. He alleged that on 17-9-1959, one Khmeanna had sold the suit site indicated by the rough sketch annexed to the plaint and marked by alphabets 'abcd'. On the same day, the plaintiff was put in possession of the suit site. Plaintiff had been enjoying as vahivaldar of the same and entry was duly made in the Town Municipal office at Lakshmcswar in regard to the transfer of properly. Plaintiff constructed a room as per the rough sketch indicated by letters AEFG facing cast. Plaintiff bagan to live in the house constructed and he did the business of guild!ng (tinning) domestie utcncils. In order to pursue the profession, plaintiff and his son were compelled to leave the house, go about searching for work from house to house. On one such occasion, defendants 1 and 2 unaulhoriscdly and illegally entered the suit property built by the plaintiffs on the site purchased by them and kept ihcjilaintiff out of his own house despite his rcquesfto handover possession of the property. After that event, plaintiff went from place lo place pursuing the profession and defendants refused to handover the properly back to the possession of the plaintiff. Therefore, the suit. ( 3 ) DEFENDANTS appeared before the Courtand filed their written statement. In the written statcmcnl, they contended lhat defendants 1 and 2 on 11-2-1980, entered into an agreement and khcmanna and his son for purchase of properly at Rs. 1,000 -. Khemappa and his son had received Rs. 500/- as advance money and as per tholerms and conditions, the defendant had to pay Rs. 1000/- within one year and get the sale deed registered from the dale of agreement to sell. Defendants 1 and 2 were in possession of property and making vahivat of the same. They denied'that ihey were trespassers in the suit property. The plaintiff never demanded vacant possession from them.
1000/- within one year and get the sale deed registered from the dale of agreement to sell. Defendants 1 and 2 were in possession of property and making vahivat of the same. They denied'that ihey were trespassers in the suit property. The plaintiff never demanded vacant possession from them. Defendants 1 and 2 had janatha houses and as such they vacated the suit house. Hence there was no cause of action against them. ( 4 ) DEFCNDANT-6 fied his scpcrate written statement stating that often times, defendants 6 to 9 were in need of money and they obtained loans from defendant-1 offering security for the same, they executed the agreement df sale of the suit property and was put in possession of defendant-1. After receiving back the money advanced, defendants 1 to 5 vacated the premises and put the property back in the possession of defendants 6 to 9. Prior to the above transactions, defendants 6 to 8 had taken loan from different persons on various occasions and they executed agreements of sale in favour of those persons. But, at no time, those persons were actually put in possession. It was in such circumstance, in 1959, defendant-6 approached the plaintiff who was on cordial terms with him and obtained Rs. 800/' and while advancing, plaintiff insisted upon the execution of the sale deed which the sixth defendant did. That sale deed was only nominal and no possession of property was given to the defendant. In those circumstances, he prayed that the suit be dismissed. ( 5 ) ON such pleading, the trial Court framedas many as six issues as follows:- (1) Whether the plaintiff proves that he is the owner of the suit property as claimed by him? (2) Whether the plaintiff further proves that the defendants are in illegal possession of the suit property? (3) Whether the defendants prove that they have given up the possession of the suit property to its original owner to one Khemanna Gajakosh and his sons? (4) Whether there is no cause of action to the suit? (5) Whether the Court-fee paid by the plaintiff is not proper and correct? (deleted) (6) Whether the plaintiff is entitled to the reliefs sought? ( 6 ) ON issues 1 and 2, it held in affirmative in favour of the plaintiff. On Issue No. 3, it held in the nagative.
(5) Whether the Court-fee paid by the plaintiff is not proper and correct? (deleted) (6) Whether the plaintiff is entitled to the reliefs sought? ( 6 ) ON issues 1 and 2, it held in affirmative in favour of the plaintiff. On Issue No. 3, it held in the nagative. On Issue No. 6, it again held in the affirmative. ( 7 ) PLAINTIFF got himself examined as P. W. 1 and two other witnesses and got marked as many as six documents including Exhibit P1, the sale deed. Ex, P2- the copy of the assessment register, Exhibit P3 copy of the Assessment register, Exhibit P4 P. R card and Exhibits P5 and P6 permission given by the Town Municipal-Council. As against that evidence, defendant-1 got himself examined as D. W. I and two witnesses and got marked as many as seventeen documents including Exhibit D1 the agreement of sale under which defendants 1 and 2 claimed to have entered possession. ( 8 ) ON appreciating evidences produced by all the parties, both oral and documentary, Court came to the conclusion that plaintiffs had proved the case of purchase and possession and construction of the room as averred by them which was proved by the licence granted by the Town municipal Council. In the result, the trial Court had no obstacle to hold in favour of the plaintiffs. Defendant's own admission that he had indeed sold the property in 1959 was held against him and his version that he did not put the plaintiffs in possession was disbelieved. ( 9 ) THE appellate Court, after hearing the Counsel for appellant before it as well as the contesting respondents-plaintiffs, affirmed the findings of the trial Court. ( 10 ) NO question of law as such has been raised much less a substantial question of law which requires to be decided by this Court under section 100 of the Code of Civil Procedure. ( 11 ) A feeble attempt was made by the counsel for the appellant before this Court that though the sale deed was executed, possession was retained by defendent-6 and therefore even if the sale had been concluded, he had perfected his title by adverse possession which the Courts below overruled and even as issue was framed in that behalf.
( 11 ) A feeble attempt was made by the counsel for the appellant before this Court that though the sale deed was executed, possession was retained by defendent-6 and therefore even if the sale had been concluded, he had perfected his title by adverse possession which the Courts below overruled and even as issue was framed in that behalf. This is a very strange argument when admittedly he had put defendants 1 and 2 who were subsequent buyers or mortgagees with possession. Therefore, on his own showing, his possession was never continuous and hostile to that of the plaintiffs. That is the rinding recorded by both the Courts on Issue No. 9 which dealt with the plea of adverse possession. When there is no evidence and the circumstances were contrary to the assertions made, Courts-below were correct in attaching more importance to the documentary evidence such as Exhibit P1 itself as well as change in the Municipal Khatha, municipal property register as well as licence issued by the Municipal Authority. That showed that defendant-6 had set up a false defence and no real question of law really arises for consideration in this appeal. ( 12 ) THE appeal is therefore dismissed. Appeal dismissed. --- *** --- .