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2004 DIGILAW 76 (KAR)

G. GOVINDAPPA BY HIS LRS. v. TAYAMMA BY HER LRS.

2004-01-28

K.SREEDHAR RAO

body2004
SREEDHAR RAO, J. ( 1 ) THIS appeal against the judgment and decree dated 28. 9. 99 in RA No. 17/85 on the file of the addl. District Judge, Raichur, arising out of the judgment and decree dated 31. 8. 85 in O. S. No. 171/81 on the file of the Civil Judge, Raichur. For convenient discussion the appellant would be called plaintiffs and the respondents as defendants. ( 2 ) THE appellants are the LRs of the deceased plaintiff, who filed a suit for declaration of title in respect of the suit schedule property and for possession. According to plaintiff his grand father one Narasappa is the propositus. The suit properties are ancestral properties. Propositus died leaving behind two sons by name Basanna and Balayya. Plaintiff is the son of Basanna. The first defendant is the wife of Balayya and the second defendant is the daughter of Balayya. Basanna died in the year 1975. Balayya died in the year 1976. Plaintiff contends that in the year 1939 as per Ex P1 Balayya released his share in the suit property in favour of Basanna. Balayya had no residence and he was financially not well placed, therefore plaintiff's father Basanna permitted balayya to live in the suit house as licensee. When the defendants took hostile attitude, the suit came to be filed for declaration of title and possession. ( 3 ) THE defendants denied the plaintiff's title. It is said that Balayya constructed the suit house investing his earnings. The property was mutated in the municipal records in the year 1963 in favour of the first defendant and she is in possession and occupation in her own right. It is said that the husband of the first defendant orally given the property to the first defendant for her maintenance. Therefore, under Section 14 of the Hindu Succession Act, she has become the absolute owner of the property. The first defendant alternatively contends that she has perfected her title by adverse possession. It is further said that the first defendant has made a registered will in favour of second defendant. The defendant denies the theory of permissive possession, denies the execution of release deed by Balayya and contends that the release deed is concocted and fabricated. The first defendant alternatively contends that she has perfected her title by adverse possession. It is further said that the first defendant has made a registered will in favour of second defendant. The defendant denies the theory of permissive possession, denies the execution of release deed by Balayya and contends that the release deed is concocted and fabricated. ( 4 ) THE trial Court finds that Ex P1 the relinquishment deed does not pertain to the suit house since the southern boundary of the property in the deed does not tally with the suit schedule property and that the plaintiff has failed to show that the property mentioned as house No. 756/ 1348 fasli relates to the suit house bearing Municipal No. 11-7-40. The trial Court also finds that adverse possession is proved and the theory of permissive possession not proved. Accordingly, dismissed the suit. The first appellate Court confirmed the findings in the judgment and decree of the trial Court. This Court in RSA 237/88 remanded the matter to the appellate Court for re-consideration of the case to find out whether the partition is proved and whether the first defendant has put up the construction of the house from their earnings and whether such construction was put up when the family was joint and also to find out whether the parties are entitled to equal share in the property. ( 5 ) THE appellate Court after remand comes to the conclusion that the partition between the parties is proved, holds that the defendants have failed to prove that they have put up the construction of the house. Further, holds that the family was not joint and the property is not a joint property, but in the judgment rendered by the appellate Court prior to the remand had upheld the finding of the trial Court on the question of adverse possession in favour of the first defendant. ( 6 ) THE case is at the stage of admission. LCRs have been secured. The Learned Counsel for the parties argued on merits for final disposal. ( 7 ) THE following substantial questions of law are formulated for consideration:- " (1) Whether the findings of the appellate Court that the plaintiff has failed to prove the title to the property is as a result of mis-interpretation of evidence and such finding is perversely contrary to the law and evidence on record? ( 7 ) THE following substantial questions of law are formulated for consideration:- " (1) Whether the findings of the appellate Court that the plaintiff has failed to prove the title to the property is as a result of mis-interpretation of evidence and such finding is perversely contrary to the law and evidence on record? (2) Whether the finding of the appellate Court that the first defendant has proved adverse possession is perversely contrary to the law and evidence on record?" ( 8 ) THE pleadings and the evidence categorically indicates that there was a partition between the basanna and Balayya under Ex D1 of the year 1939 Balayya relinquished his rights in the suit house in favour of Basanna. In that view, the question whether the family is a joint family and whether the parties have equal share in the properties and could the relief of partition be granted does not arise for consideration. ( 9 ) IT is the specific case of the plaintiff that the husband of the first defendant executed a relinquishment Deed under Ex P1 in favour of his father in the year 1939. Thereafter on compassionate grounds, the husband of the first defendant was permitted to occupy the house as a licensee and the occupation is a permissive possession. The father of the plaintiff died in 1975, husband of the first defendant died in the year 1976 is untenable. ( 10 ) THE evidence placed on record conclusively establishes that the property in Ex P1 folly tallies with the suit property. Merely because the southern boundary in Ex P1 is shown as the house of one Kallur Siddanna and in the schedule it is shown as a road, it does not mean that the suit property is a different property. The suit house property came to be re-described by the municipality from time to time and now it bears door No. 11-7-40. The oral evidence corroborates the fact that the suit property is related to Ex P1. ( 11 ) THE plaintiffs rely only on the oral evidence to prove the theory of permissive possession. PW-2 is examined on behalf of the plaintiff and he admits that he is the friend of plaintiff. The oral evidence corroborates the fact that the suit property is related to Ex P1. ( 11 ) THE plaintiffs rely only on the oral evidence to prove the theory of permissive possession. PW-2 is examined on behalf of the plaintiff and he admits that he is the friend of plaintiff. The oral evidence let in is loose and artificial The contents of Ex P1 disclose that there was a partition and division of properties between the father of the plaintiff and husband of the first defendant in the year 1939. The Courts below have concurrently found that the plaintiffs have failed to prove the theory of permissive possession. The said finding is sound and proper. The first defendant and her husband are in occupation continuously for over 40 years, the conduct of plaintiff in not obtaining any document to acknowledge the fact of permissive possession from the first defendant appears to be an adverse factor against the plaintiff. On the other hand, the first defendant gets her name mutated in the municipal records in the year 1963 claiming right over the property. ( 12 ) THE first defendant has clearly stated that from the year 1963, she got her name mutated in the municipal records and claims to be in possession. The claim by adverse possession is categorically stated to be from the year 1963. The decision of this Court in the case of hanumanthappa AND ORS. v. M. ADISHESHAIAH AND ORS. , ILR 2003 KAR 2442 has no application to the facts of the case. The Courts below have concurrently found that the plaintiff has failed to prove the theory of permissive possession. The Learned Counsel for the defendants relied on the decision of the Supreme Court in the case of CHANDRABHAGABAI and ORS. v. RAMAKRISHNA AND ORS. , 1998 V AD (SC )453 , air1998 SC 2549 , JT1998 (5 ) SC 197a , 1998 (4 )SCALE309 , (1998 )6 SCC207 to bring home the point that when the plaintiffs' theory of permissive possession is rejected as a corollary it is to be held that the possession of the defendants is an adverse possession. , 1998 V AD (SC )453 , air1998 SC 2549 , JT1998 (5 ) SC 197a , 1998 (4 )SCALE309 , (1998 )6 SCC207 to bring home the point that when the plaintiffs' theory of permissive possession is rejected as a corollary it is to be held that the possession of the defendants is an adverse possession. ( 13 ) ON facts, I find the decision of the Supreme Court in 1998 V AD (SC )453 , AIR1998 SC 2549 , JT1998 (5 )SC 197a , 1998 (4 )SCALE309 , (1998 )6 SCC207 squarely applies to the facts bf the case. The plaintiffs have failed to prove the theory of permissive possession. On the other hand, the defendants have substantially established the continuous uninterrupted possession. The record establishes that since 1963 the defendants in her own right obtains mutation and continued the enjoyment of the property uninterruptedly till the date of suit. When the plaintiff fails to prove the theory of permissive possession as a legal corollary and consequence the plea of adverse possession automatically should be upheld. Therefore, the concurrent finding of the Courts below on the question of adverse possession is sound and proper. ( 14 ) IN that view of the matter, the appreciation of evidence and inference drawn by the appellate court is sound and proper. The questions of law are answered in negative. Appeal is dismissed.