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2001 DIGILAW 532 (KAR)

AZEEZ KHAN v. ANWAR PASHA ALIAS KHASIM KHAN

2001-07-11

K.SREEDHAR RAO

body2001
SREEDHAR RAO, J. ( 1 ) APPEAL filed against the judgment and decree passed by the third Additional Civil Judge, Bangalore in Original Suit No. 10296 of 1988. The appellant is the defendant in the suit. The plaintiffs are the respondents in this appeal filed the suit for recovery of possession of the suit property consisting of a room in the first floor of the premises bearing No. 24, Chowal Galli, Jumma Masjid Road Cross, bangalore measuring 10!x 20'. ( 2 ) ACCORDING to plaintiffs late Usman Khan who owned property gifted the same in favour of father of the plaintiffs in the year 1948 under registered gift deed. The defendant during that period had gone to Pakistan with a view to settle there. However he came back to India. The plaintiffs' father taking sympathy towards the defendant allowed him to reside in the suit schedule premises which happened somewhere in the year 1951. According to plaintiffs since that date the defendant is in permissive possession and enjoyment of the suit property. The father of the plaintiffs is said to have executed a gift deed in favour of the plaintiffs in the year 1958 bequeathing the suit property. After the demise of the plaintiffs' father, -the plaintiff demanded possession from the defendant which was refused. Therefore the present suit came to be filed. ( 3 ) THE appellant-defendant resisted the suit contending that he is residing in the premises in his own right as the property belonging to his father claims inheritance right denies the gift deed executed in favour of the father of the plaintiffs and as well the gift deed executed in favour the plaintiffs by their father and in alternative sets up piea of adverse possession. The defendant also denies the version that he migrated to Pakistan for some time in the year 1948 and thereafter came and settled in India. According to defendant, he has been in continuous possession and enjoyment of the suit property without interruption. The trial Court on. the consideration of the oral and documentary evidence decreed the suit of the plaintiff. Being aggrieved, the present appeal is filed. ( 4 ) THE Counsel for the appellant strenuously contended that the gift deed executed in favour of plaintiffs' father by late Usman Khan and as well the gift deed executed by. The trial Court on. the consideration of the oral and documentary evidence decreed the suit of the plaintiff. Being aggrieved, the present appeal is filed. ( 4 ) THE Counsel for the appellant strenuously contended that the gift deed executed in favour of plaintiffs' father by late Usman Khan and as well the gift deed executed by. plaintiffs' father in favour of plaintiffs are void since no effective possession was ever delivered. In particular the gift in favour of plaintiffs was seriously challenged. that the suit property obviously being in possession of the defendant, there was no delivery of possession under the gift deed either by actual delivery or by constructive delivery and that there is no acceptance of the gift by the plaintiffs. In that regard the recitals in the gift deed Ex. P. 7 is perused. On the meticulous reading of the recitals in the gift deed Ex. P. 7, it is nowhere indicates that there has been an acceptance of gift by the plaintiffs and so also them is no indication of delivery of possession. However, consideration the validity of the gift made in favour of the plaintiffs would be of little consequence. Since the gift deed executed by Usman Khan in favour of the father of the plaintiff, if established under the said gift deed, the plaintiffs can base their rights to assert the. title. ( 5 ) THE gift deed executed by late Usman Khan in favour of plaintiffs' father is marked at Ex. P. 1. The recitals of the document answers some of the factual questions that are raised in the suit under Ex. P1 late Usman Khan has bequeathed the property in favour of the plaintiffs' father. The recitals are clear and categorical about the conveyance of title. The facts and circumstances that prompted tate Usman Khan to gift the property in favour of plaintiffs' father are narrated. The recitals in the document clearly indicate the delivery of possession and acceptance of gift by the plaintiffs' father. The recitals in the gift deed also in a way corroborates the version of the plaintiff that the defendant had migrated to Pakistan. The deed is of the year 1948 at a point of time When there was no controversy between the parties. The recitals in the gift deed also in a way corroborates the version of the plaintiff that the defendant had migrated to Pakistan. The deed is of the year 1948 at a point of time When there was no controversy between the parties. In the face of such recitals relating to the defendant, the contention of the defendant that he never migrated to Pakistan and he was living in the said premises all along without interruption does not appear to be a tenable contention. In addition to the recitals in Ex. P. 1, the plaintiffs have also let in oral evidence to show that the defendant has migrated to Pakistan for some time and thereafter he came back to India, the father of the plaintiffs taking sympathetic stand towards the defendant, had permitted to him to stay in the suit premises. ( 6 ) THE case of the plaintiffs disclose that the defendant was inducted into possession by their father and it was a permissive possession. On the other hand, the defendant sets up the right of inheritance and alternatively takes plea of adverse possession. The counsel for the respondent strenuously contended that there is no pleadings for adverse possession and there is no material to show from what point of time the possession became the adverse possession. The decision of the Supreme Court in INDIRA vs armugam AND ANOTHER is cited at the Bar wherein it is held thus:"5, It is, therefore, obvious that when the suit is based on title for possession, once the title is established oh the basis of relevant documents and other evidence unless the defendant proves adverse possession for the prescriptive period, the plaintiff cannot be non-suited. Unfortunately, this aspect of the matter was missed by the learned Judge and therefore, the entire reasoning for disposing of the second appeal has got vitiated. Only on that short ground and without expressing any opinion on the merits of the question of law framed by the Judge for disposing of the second appeal this appeal is allowed. The impugned decision rendered is set aside and the second appeal is restored to the file of the High Court with a request to proceed further with the hearing of the appeal with respect to the substantial question afore mentioned in accordance with law. No costs. The impugned decision rendered is set aside and the second appeal is restored to the file of the High Court with a request to proceed further with the hearing of the appeal with respect to the substantial question afore mentioned in accordance with law. No costs. " ( 7 ) THE Counsel also relied on the ruling of the Supreme Court in MOHAN LAL (deceased) THROUGH HIS L. RS KAKCHRU AND others vs MIRA ABDUL GAFFAR AND ANOTHER at para 4 of the judgment it is held thus:"4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i. e. , upto completing the period of his title by prescription nec vi nec clam nec precario. Since the appellant's claim is founded on Section 53-A, it goes without saying he admits by implication that he came into possession of the land lawfully under the agreement and Continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant. " ( 8 ) THE ruling of this Court in R. PRAKASH vs SMT. G. P. MARTHAMMA is cited and in para 7 it is held thus:"7. I find prima facie, the defendants have right in the property at all. It is also seen from the written statement that they tried to attack the sale deed in favour of the plaintiff as one purchased from minor. The validity of the sale deed is not taken in this suit and it is not open to the defendants to raise the same. In fact, the defendant began to claim the title by adverse possession without admitting the title of the plaintiff, how they are entitled to raise the question of adverse possession is not known to law. One of the contention raised is that the plaintiff is bound to execute the gift deed in favour of the defendants. In fact, the defendant began to claim the title by adverse possession without admitting the title of the plaintiff, how they are entitled to raise the question of adverse possession is not known to law. One of the contention raised is that the plaintiff is bound to execute the gift deed in favour of the defendants. " ( 9 ) IN view of the aforesaid proposition of law, it was strenuously contended that the appellant is not entitled to set up title in the property and as well plead alternatively adverse possession and further thai when once the title of the property is established mere continued possession of the defendant for any length of time cannot defeat the claim of the plaintiffs to have possession under Article 65 of the Limitation Act and only upon the proof of adverse possession the defendant can non suit the plaintiffs. In the present case it was strongly contended that the defendant has miserably failed to prove the theory of adverse possession. On the other hand, the plaintiffs have successfully established their title and in the absence of proof of adverse possession the claim of the plaintiffs is fully justified. ( 10 ) PER contra, the Counsel for the appellant relied upon the ruling of this Court in KARNATAKA WAKF BOARD, BANGALORE vs STATE OF KARNATAKA AND OTHERS the Division Bench of this Court held in para 22 has held thus:"2. The plaintiff has taken up an alternative plea that if has perfected its title to the suit property by adverse possession also. In the appeal memo, in para 10 at page No. 7. It is contended that the said Plea is inconsistent with the plea of title under issue no. 1. It is not possible to accept this contention. It is well-settled that the plaintiff can taken an alternative plea. The plea regarding title and the plea of Adverse possession lead by the plaintiff in this case, cannot be said to be inconsistent with one another. 1. It is not possible to accept this contention. It is well-settled that the plaintiff can taken an alternative plea. The plea regarding title and the plea of Adverse possession lead by the plaintiff in this case, cannot be said to be inconsistent with one another. The evidence of P. W. 1 and the documentary evidence placed on record by the plaintiff and also the clear and unequivocal admission made by D. W. 1 in his evidence, as discussed above, go to show that the plaintiff has been in possession of the suit property right from the year 1928 and in 1941, the plaintiff granted the suit property in favour of the District Local Board and again in 1960, the Plaintiff resumed the said property from the District local Board and granted it to the District School Board under ex. P. 3 and subsequently the Education Department constructed a building in the suit property in the year 1961 and the plaintiff has been in possession of it till the date of suit. Trie suit has been filed on 18. 12. 1980. Since the defendants have been putting forward a claim to the suit property since ancient times, the possession of the plaintiff is necessarily hostile to the claim of title made by the defendants and is to their knowledge. The period of plaintiffs possession being well over the statutory period under article 64 of the Limitation Act, 1963, the Learned trial Judge has rightly held that the Plaintiff has established its title to the suit property by adverse possession also. There is no substance in the contention of the appellant that the appreciation of Evidence on record by the Trial Court is not Proper. Hence, Point No. (I) is answered in the affirmative. " ( 11 ) THE ruling of the Supreme Court in CHANDRABHAGABAIAND OTHERS vs RAMAKRISHNA AND OTHERS in para 10 it is held thus:"10. So far as the plea of adverse possession of the defendants is concerned, it has been found by the trial court as well as the first appellate court that Suryabhan was not a tenant of the suit house and as he was in continuous possession of the suit premises for a period of 30 years and more prior to the date of the suit. He had occupied the same in his own right and consequently he had become the owner of this Property by adverse possession against the Plaintiffs, especially, Narayan. Efforts made by learned Counsel for the appellant-plaintiffs to show that Suryabhan had admitted that Narayan was the landlord both in 1942 when Narayan sought To insert his name in the municipal records as owner and also in 1958 when Suryabhan is alleged to have made an endorsement on the application of narayan to the municipality that he was a tenant of the suit property since 20 years, cannot be of any assistance to the appellants for the simple reason that none of these documents stand proved on the record of the present case as Suryabhan since deceased who is said to have given such a Statement on endorsement before municipal Authorities was not available for being confronted with the same for proving it and that statement was even otherwise not tried to be proved by the Plaintiffs under section 32 of the Indian Evidence Act. The so called statement not legally proved in the present case. The Courts below were therefore justified in taking the view that the plaintiffs cannot base their case on the so called statement of Suryabhan. Consequently, it has to be held that Suryabhan had perfected his title to the suit rooms by staying for more than 30 years prior to the suit as owner thereof and being in adverse possession against Narayan. This finding reached by the Courts below and as confirmed by the High Court also remains well sustained on the record of this case. This fact therefore, is answered in the affirmative in favour of the respondents and against the appellants. " ( 12 ) THE Counsel for the appellant strenuously contended that the appellant-defendant being in continuous possession of the property for over a period of 12 years in his own right has perfected his right by way of adverse possession. The plea of adverse possession and plea of ownership are not mutually destructive and could be contended in alternative. " ( 12 ) THE Counsel for the appellant strenuously contended that the appellant-defendant being in continuous possession of the property for over a period of 12 years in his own right has perfected his right by way of adverse possession. The plea of adverse possession and plea of ownership are not mutually destructive and could be contended in alternative. On the question of pleadings and oral evidence, it is submitted that there are clear averments made relating to the plea of adverse possession so also in evidence the appellant has contended that he has been in continuous possession in his own right and denies the right, title of the plaintiff and thus argued that in view of the proposition of law laid down in the cases cited in support of the appellant the suit of the plaintiff-respondent is to be dismissed. ( 13 ) AFTER going through the decisions cited by the Counsel for the respondent 1 find that none of the decisions have an application to the facts of the case. In the decision of the Supreme Court in air 1996 the facts indicate that the induction into possession under an agreement of sale covered by the provisions of Section 53a of the Transfer of Property Act. During continuation of possession under section 53a, it was held that the plea of adverse possession can not be set up since both the pleas are mutually destructive and cannot co-exist together. This proposition of law has no application to the facts of the case in the sense that the plaintiffs categorically take a stand that the defendant was inducted into possession by their father graciously and it was a permissive possession. In support of the said contention except the self serving say of the plaintiff, there is no other evidence produced to show that the defendant was inducted into permissive possession by the plaintiffs' father in the manner stated. The attending circumstances also, creates a serious doubt about the theory of permissive possession. ( 14 ) ACCORDING to plaintiffs since the year 1951, the defendant is in continuous possession and enjoyment. If really was in permissive possession at the time when the gift deed was executed something should have been taken from defendant or he should have been made to participate in the proceedings relating to the gift deed of the year 1958 Ex. P. 7. If really was in permissive possession at the time when the gift deed was executed something should have been taken from defendant or he should have been made to participate in the proceedings relating to the gift deed of the year 1958 Ex. P. 7. However, the entire transaction of gift under ex. P. 7 has been done without reference to the defendant, and without his participation. It was but natural that he had been inducted into possession gratuously, necessarily something could have been obtained by way of a document atleast at the time of Ex. P. 7. The evidence placed by the respondent regarding khatha change without reference to the defendant cannot suggest that the possession of the defendant was permissive and cannot corroborate the version of the plaintiff in that regard. ( 15 ) WHEN the plaintiffs have come out with a categorical case of permissive possession and have failed to prove the factum of permissive possession. As a corollary the adverse possession has to be inferred and the ruling of the Supreme Court reported in AIR 1998 S. C. 2549 clearly applies to the facts of the case. The facts involved in the case clearly indicate that the plaintiffs' contention was that the defendant was a tenant. In earlier proceedings between the same parties, it was held that there was no relationship of landlord and tenant and that issue has become conclusive and was operating as res judicata. In the subsequent proceedings for possession, the plaintiffs were not permitted to contend the plea of tenancy. The defendant on the other hand contended adverse possession. As the plea of tenancy failed, it was held that the plea of adverse possession in such context is acceptable. In the present case also the plaintiffs have failed to prove the plea of permissive possession on the other hand continued possession by the defendant and the attending circumstances corroborates his theory of adverse possession. Therefore in that view of the matter, I find that the trial court has not properly appreciated the evidence on record and also the proposition of law applicable. ( 16 ) ACCORDINGLY, the judgment and decree of the Triauqourt is set aside. Appeal is allowed. The suit of the plaintiffs dismissed. ( 17 ) THE deposits made by the appellants in view of the inter imorder is permitted to be refunded after a period of three months. ( 16 ) ACCORDINGLY, the judgment and decree of the Triauqourt is set aside. Appeal is allowed. The suit of the plaintiffs dismissed. ( 17 ) THE deposits made by the appellants in view of the inter imorder is permitted to be refunded after a period of three months. --- *** --- .