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2008 DIGILAW 662 (KAR)

Baswanthrao since deceased by his LRs v. Rajkumar

2008-11-04

N.KUMAR

body2008
JUDGMENT Kumar, J This is a defendant's regular first appeal against the judgment and decree of the trial Court which has decreed the suit of the plaintiff and granted the relief of declaration that the plaintiff has perfected his title by adverse possession. 2. For the purpose of convenience, the parties are referred to as they are referred to in the original suit. 3. The subject matter of the suit is land bearing Sy. No. 26 measuring 22 acres, land bearing Sy. No. 27 measuring 2 acres 4 guntas and land bearing Sy. No. 27/Malai measuring I acre 31 guntas situated at Village Kouta, Aurad Taluk in Bidar District. The case of the plaintiff is that the defendant who owns 500 acres of land in different villages including the suit land, for family necessity sold the suit land in favour of the grandfather of the plaintiff, namely Appa Rao during the year 1972 for a consideration ofRs.65,000/-. The defendant is a close relative of the plaintiff and his grand father Apparao and therefore, no written document regarding the sale transaction was entered into. However, from Ugadi, in the year 1972 the plaintiff's grandfather Appa Rao is in possession of the suit land. In his capacity as a purchaser he has been paying Land Revenue to the suit lands since 1972-73. When the said Appa Rao became very old, the plaintiff used to assist and cultivate all the suit lands along with his grand father. Appa Rao died in the year 1981. After his death the plaintiff cultivated the suit land in the capacity of a purchaser. The plaintiff's father Shiivrayya also used to assist the plaintiff in cultivation. The grandfather of the plaintiff was in peaceful, uninterrupted, continuous possession of the suit lands in the capacity of a purchaser to the knowledge of the defendant and hostile to his title, till his death. After his death, the plaintiff has cultivated the suit land and he is in peaceful, continuous and uninterrupted possession of the suit land, hostile to the title of the defendant and thus the plaintiff has perfected his title by way of adverse possession, being in possession for more than 12 years over the suit lands. On 20.7.1982 the mutation regarding the suit lands was sanctioned in the name of the plaintiff and his name alone is appearing in the cultivator's column. On 20.7.1982 the mutation regarding the suit lands was sanctioned in the name of the plaintiff and his name alone is appearing in the cultivator's column. The plaintiff is paying the Land Revenue. In the year 1972 the defendant was involved in a murder case and in order to meet the litigation expenses he raised Rs.65,000/- from the grandfather of the plaintiff. The defendant was convicted in the Court of Sessions Judge, Bidar. However, he was acquitted by the High Court. When the defendant with the assistance of anti social elements obstructed the cultivation of the plaintiff in the suit lands, the plaintiff filed a complaint against the defendant under Section 145 of Cr.P.C. in the year 1988-89. The case was registered in No. RBAIMAG/CR-1/88-89 before the Taluka Magistrate at Aurad. After the enquiry by an order dated 8.7.1991 the Taluka Magistrate concluded that the p1aintiffis in possession of the property. However, the said order came to be set aside by the Sessions Court, Bidar, purely on technical grounds. In the year 1986 a panchanama dated 25.8.1986 was drawn, which shows that the plaintiff was in possession of the suit lands. Therefore, the plaintiff contended that from 1972-73 he is in continuous possession and enjoyment of the suit land, denied the title of the plaintiff and has perfected his title by adverse possession. As there was interference to his possession the plaintiff flied the suit for declaration that he is the absolute owner in possession of the property having perfected his title by adverse possession. 4. The defendants filed a detailed written statement denying the claim of the plaintiffs. He specifically denied the allegation that he being in need of money for his legal and family necessities has sold the suit lands in favour of the grandfather of the plaintiffs viz., Apparao in the year 1972. He denied having received Rs.65,000/- from the grandfather of the plaintiffs. He denied the possession and cultivation of the suit lands by Apparao. The plaintiff nor his grandfather were ever in possession of the suit lands. The allegation that plaintiffs father Shivrayya was also assisting the plaintiff in cultivation was denied. The allegation that the plaintiff was in peaceful, uninterrupted and continuous possession of the said land in the capacity of the purchaser with the knowledge of the defendant and hostile to the title of the defendant till his death was denied. The allegation that plaintiffs father Shivrayya was also assisting the plaintiff in cultivation was denied. The allegation that the plaintiff was in peaceful, uninterrupted and continuous possession of the said land in the capacity of the purchaser with the knowledge of the defendant and hostile to the title of the defendant till his death was denied. The allegation of the plaintiff that he has perfected his title by way of adverse possession being in possession for more than twelve years was denied. They specifically contended that the mutation entries in the name of the plaintiff was set-aside by the Deputy Commissioner in revision preferred by the defendant under Sec. 136(3) of the Land Revenue Act on 29.6.1991. It was alleged that the plaintiff with the collusion of the concerned police started illegal proceedings under Sec. 145 of CrPC to dispossess the defendant from the suit lands before the Taluka Magistrate, Aurad. The said proceedings and the findings recorded therein was set-aside by the Sessions Court as well as the High Court and therefore, the said proceedings have no value. The panchama on which reliance was placed, which was conducted by the revenue inspector is bogus and fabricated and hence, no reliance could be placed on the said document. In fact, the name of the defendant is entered in Col.No.12(2) of the RTC from 1973-74 till the date of the suit. From 1981-82 onwards the name of the plaintiff was entered showing that he was cultivating the land on behalf of the defendant for the period 1981-82 and 1982-83. Thereafter, the entries were kept blank. Therefore, the defendant sought for dismissal of the suit. 5. On the aforesaid pleadings, the trial Court framed the following issues: (I) Whether the plaintiff proves that his grandfather Apparao has purchased the suit lands from the defendant in the year 1972? (2) Whether the plaintiff further proves that he has perfected his title to the suit lands by way of adverse possession? (3) Whether the defendant proves that through Registered Partition Deed dated 14.12.1972 the suit lands fell to his share? (4) Whether the defendant further proves that he is in possession and enjoyment of the suit lands? (5) Whether the plaintiff is entitled to the relief of declaration and permanent injunction sought for? (6) What order or decree. 6. (3) Whether the defendant proves that through Registered Partition Deed dated 14.12.1972 the suit lands fell to his share? (4) Whether the defendant further proves that he is in possession and enjoyment of the suit lands? (5) Whether the plaintiff is entitled to the relief of declaration and permanent injunction sought for? (6) What order or decree. 6. The plaintiff was examined as PW 1and he has examined four witnesses as PWs 2 to 5. He also produced 30 documents which were marked as Exs.P.1 to P10. The defendant was examined as DW1 and he examined a witness as DW2. On behalf of the defendants twelve documents were produced which were marked as Exs.D1 to D.12. 7. The trial Court on appreciation of the aforesaid oral and documentary evidence on record held that the plaintiff has proved that his grandfather Apparao had purchased the suit land from the defendant in the year 1972; He further proves that he has perfected his title by way of adverse possession and that the defendant has failed to prove his possession over the suit land and therefore the plaintiff was entitled to the relief of declaration and permanent injunction. Aggrieved by the said judgment and decree of the trial Court, the defendant is in appeal. 8. Learned counsel Sri Shankar Rao Shetkar appearing for the appellant assailing the judgment and decree of the trial Court contended: - In the light of the pleadings in the case viz., that the plaintiffs grand father purchased the property from the defendant and that the plaintiffs grandfather and thereafter the plaintiffs continued in possession as purchaser thereof disentitles the plaintiff's relief of declaration that he has perfected his title by way of adverse possession. Even mutation entries on which reliance is placed clearly shows that the plaintiff was cultivating the land for and on behalf of the defendants which do not constitute adverse possession. The said entries have been set-aside by the Deputy Commissioner in a revision under Sec.136(3) of the Karnataka Land Revenue Act and therefore, the trial Court committed a serious error in acting on the said entries and in granting the declaration sought for. The said entries have been set-aside by the Deputy Commissioner in a revision under Sec.136(3) of the Karnataka Land Revenue Act and therefore, the trial Court committed a serious error in acting on the said entries and in granting the declaration sought for. When the defendant admittedly is the owner of the property, his name finds a place in the record of rights in Column No.12(2) from 1972-73 till the date of the suit and the proceedings initiated under Sec.l45 of Cr.P.C. ended in favour of the defendants both in the Sessions Court as well as in the High Court, absolutely there was no material on record to come to the conclusion that the plaintiff has perfected his title by adverse possession. Therefore, the judgment and decree of the trial Court requires to be set-aside. 9. Per contra, Sri Vikrarn G Allipur, Learned Counsel appearing for defendant/respondent contended that the material on record establishes the plaintiffs possession of the property uninterruptedly, continuously from 1972 till the date of the suit for nearly twenty years which is sufficient to grant the declaration sought for. The mutation entries in the name of the plaintiffs coupled with the orders passed by the Taluka Magistrate under Sec.145 of Cr. PC also establishes adverse possession of the plaintiffs over the suit schedule property. The defendant is not a resident of the village where the land is situated; He stays far away and it is the plaintiff who is cultivating the land and therefore, the trial Court on proper appreciation of the oral and documentary evidence on record, has rightly decreed the suit of the plaintiff and the same does not call for interference. 10. From the aforesaid pleadings and the rival contentions, the point that arise for consideration in this appeal is as under: "Whether the findings of the trial Court that the plaintiff has perfected his title by adverse possession calls for interference "? II. Before examining the plea and the evidence on record, it is necessary to know the law on the point. 12. Possession is one of the few phenomena considered to be the most complex in the legal labyrinth and it becomes all the more abstruse when the term is prefixed by the epithet 'adverse' and nobody finds it simple to understand which is by nature adverse. 12. Possession is one of the few phenomena considered to be the most complex in the legal labyrinth and it becomes all the more abstruse when the term is prefixed by the epithet 'adverse' and nobody finds it simple to understand which is by nature adverse. The most outstanding feature of the complexity of the concept is that the claimant placing his foot on the plea of adverse possession claims his own title to a property to which the title of another is not disputed. The concept of adverse possession involves three elements, namely, (1) property, the subject of adverse possession; (2) possession of that property by a person having no right to its possession (Animus possidendi); and (3) the possession being adverse to the true owner. 13. Adverse possession is a question of fact and in a claim of adverse possession, the title is not disputed; what is alleged is only its extinction. A plea of adverse possession being based on facts which have to be raised to that effect, is not necessarily a legal plea. The plea of adverse possession raises a mixed question of law and fact. Where a person wants to base his title on it, he should specifically set up the plea. Unless the plea is raised, it cannot be entertained. A plea must be raised and it must be shown when possession became adverse, so that the starting point of limitation against the party affected can be found. The prayer clause may not be taken as a substitute for a plea. A person acquires title by way of adverse possession when he is in continuous, uninterrupted, hostile possession over a period of 12 years. In order to calculate 12 years period there should be a starting point. Therefore, the law mandates that the plaintiff who seeks a declaration that he has perfected his title by way of adverse possession should specifically plead the date from which his possession becomes adverse to that of the defendant. It is from that date if the plaintiff shows continuous, uninterrupted possession for a period of 12 years, then the right of the defendant to the property stands extinguished and the plaintiff would acquire title by way of adverse possession. 14. It is from that date if the plaintiff shows continuous, uninterrupted possession for a period of 12 years, then the right of the defendant to the property stands extinguished and the plaintiff would acquire title by way of adverse possession. 14. In so far as proof of adverse possession is concerned, it is a well-settled principle that a party claiming adverse possession must prove that his possession is "nee vi, nee clam, nee preeario", that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. Therefore, a person who claims adverse possession should show: (a) On what date he came into possession, (b) What was the nature of his possession, (c) Whether the factum of possession was known to the other party (d) How long his possession has continued, and (e) His possession was open and undisturbed. It is only on proof of all these ingredients the case of adverse possession is said to have been established. A person pleading adverse possession has no equities in his favour, since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. 15. In support of his case the plaintiff has examined in all five witnesses. He was examined as P. W -1. He has produced the record of rights which are marked as Ex.P-1 to P-12 which shows that plaintiff was cultivating the land on behalf of the defendant. Ex.P-13 is the Panchanarna conducted by the R.1 of Santhapur, which shows that the plaintiff is in possession of the property on the date of Pancbanarna. Again ExsP-14 to 28 are the record of rights pertaining to the suit lands for the period after the filing of the suit. Plaintiff examined his father as one of the witnesses who was examined as P.W-3. P.W.2 Ramesh and PW4, Shivraya are said to be the adjoining owners of the suit schedule land. P.W-5 is a person who is running a shop. All the witnesses have deposed about the sale of the schedule property by the defendant in favour of the plaintiff's grand father, delivery of possession and petitioner cultivating the said lands. P.W.2 Ramesh and PW4, Shivraya are said to be the adjoining owners of the suit schedule land. P.W-5 is a person who is running a shop. All the witnesses have deposed about the sale of the schedule property by the defendant in favour of the plaintiff's grand father, delivery of possession and petitioner cultivating the said lands. When admittedly the value of the subject matter of sale was Rs.65,000-00 and what is purchased is an immovable property, unless the sale is evidenced by a registered document, in the eye of law there is no sale. Plaintiff's grand father would not acquire any title by way of sale. Therefore, the entire oral evidence adduced in respect of sale has no value in the eye of law. It would not prove the case of sale pleaded by the plaintiff. That is precisely the reason why the plaintiff bases his title on the plea of adverse possession. Secondly, most of the oral evidence is with reference to the defendant being involved in a criminal case, he is a big Zamindar, he owns large extent of land and in order to meet the expenses of criminal litigation he sold the property, he was convicted by the Sessions Court and subsequently he was acquitted by this Court. This evidence neither proves the sale nor the title of the plaintiff by adverse possession. Therefore, the voluminous oral evidence adduced in the case through witnesses is of very little assistance in establishing the case of the plaintiff. On the contrary, the defendant has adduced evidence by examining two witnesses and producing 12 documents EX.D1 to D 12, which are in the nature of certified copies of the orders passed both in the revenue proceedings, the mutation proceedings as well as Section 145 of the Cr.P. C. The' documentary evidence produced by both sides taken as a whole discloses that the name of the plaintiff was entered in Column No. 12(2) in the RTC as cultivating the land on behalf of the defendant in the year 1981-82. On coming to know of the same, the defendant has challenged those entries. Those entries have been set aside by the Deputy Commissioner. Similarly, the findings recorded by the Taluka Magistrate on the basis of the Mahazar showing that plaintiff is in possession was set aside by the District and Sessions Court which finding is affirmed by the High Court. On coming to know of the same, the defendant has challenged those entries. Those entries have been set aside by the Deputy Commissioner. Similarly, the findings recorded by the Taluka Magistrate on the basis of the Mahazar showing that plaintiff is in possession was set aside by the District and Sessions Court which finding is affirmed by the High Court. Therefore, in the light of these undisputed documentary evidence, Court proceedings, orders, it is clear that the attempt made by the plaintiff to get his name entered in the RTC records and to claim possession were all frustrated by the orders passed by the Higher authorities setting at naught those entries. It is in this background and in the light of the oral and documentary evidence on record we have to and out whether the case set up by the plaintiff namely of adverse possession is established. 16. In the entire plaint it is not pleaded from what time the possession became adverse. On the contrary, the specific case pleaded by the plaintiff is that his grandfather purchased the suit schedule property from the defendant on paying a consideration of Rs. 65,000/- in the year 1972 and his grandfather continued in possession as a purchaser. The case pleaded is one of acquisition of title and he being put in lawful possession by the vendor. It is not reduced into writing and no sale deed was executed, much less registered. Therefore, the case of sale and acquisition of title by such sale must necessarily fail. The revenue entries of 1972 even to this date stands in the name of the defendant and not the plaintiff. It shows, the so called sale was not given effect to and not acted upon. No mutation entry was made in favour of the plaintiff on the basis of the said sale. Even in 1981-82 when for the first time the plaintiff's name was inserted in column No. 12(2) of the RTC, his name was entered as a person cultivating the property under the defendant. Defendant's name was not removed. His name was not entered in the cultivator's column by virtue of any sale as contended by the plaintiff. Those entries were set aside in the proceedings under Section 136(3) before the Special Deputy Commissioner. Therefore, even those entries cannot be taken into consideration to consider the possession of the plaintiff over the suit property. 17. His name was not entered in the cultivator's column by virtue of any sale as contended by the plaintiff. Those entries were set aside in the proceedings under Section 136(3) before the Special Deputy Commissioner. Therefore, even those entries cannot be taken into consideration to consider the possession of the plaintiff over the suit property. 17. It is an error to suppose that the proceedings for the mutation of names are judicial proceedings in which the title to and the proprietary rights in immovable property are determined. They are much more in the nature of fiscal inquiries instituted in the interest of the State for the purpose of ascertaining as to which of the several claimants for the occupation of certain denominations of immovable property may be put into occupation of it with greater confidence that the revenue for it will be paid. Orders in mutation proceedings are not evidence that the successful applicant was in possession as sole legal owner in a proprietary sense, to the exclusion of other claimants. For example, of all claims of the other members of the family as co-owners or for maintenance or otherwise, as revenue authorities have no jurisdiction to pronounce upon the validity of such a claim. The wrong transfer of khat a by the revenue authorities to the name of a person cannot be taken as indicating that the person in whose name it is transferred is in possession of property covered by the khata adverse to the true owner from the date of such transfer. 18. In the year 1985-86 proceedings were initiated under Section 145 of Cr.P.C at the instigation of the plaintiff. Though the Taluka Magistrate passed an order holding that the plaintiff is in possession of the property somewhere in 1985-86, the said proceedings were quashed by the District and Sessions Court, which order was affirmed by the High Court. Therefore, the entire proceedings initiated before the Taluka Magistrate got wiped out and the mahazar showing that the plaintiff is in possession in 1985-86 has no value. Even otherwise from that day 12 years had not elapsed on the date of the suit i.e., 1992. 19. If these materials are excluded there is nothing on record to show that the plaintiff was or is in possession of the property. Even otherwise from that day 12 years had not elapsed on the date of the suit i.e., 1992. 19. If these materials are excluded there is nothing on record to show that the plaintiff was or is in possession of the property. If the plaintiff claims to be in possession as a purchaser firstly by his grandfather, after his death he continued in possession as a purchaser, it cannot be the starting point of adverse possession at all. Unfortunately, the learned trial Judge has not kept in mind the settled legal principles and proceeded on the footing that in 1972 plaintiff's grandfather was put in possession and the plaintiff was assisting his grandfather in cultivating the property and he is in continuous possession from 1972 till the suit in 1992 for 20 years and therefore, the plaintiff has perfected his title by adverse possession. The said finding is contrary to the material on record. He has not bothered to look into the RTC and the order passed by the Deputy Commissioner and the way in which the RTC entries were made. There is a total non-application of mind by the trial Judge both to the facts of the case and the law on the point. In that view of the matter, the judgment and decree passed by the trial Court cannot be sustained. Accordingly, it is liable to be set aside. Hence, I pass the following order :- (i) Appeal is allowed. (ii) The judgment and decree of the trial Court is hereby set aside. (iii) The suit of the plaintiff is dismissed with costs.