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2013 DIGILAW 184 (KAR)

Rajan v. P. A. Laxmidevi

2013-02-14

B.SUBHASH

body2013
Judgment :- (This R.F.A is filed under Section 96(1) of the CPC against the judgement and decree dt. 8.2.08 passed in OS NO.962/86 on the file of the XV Addl. City Civil & Sessions Judge, Bangalore, (CCH.NO.3), decreeing the suit for mandatory injunction.) 1. This appeal is by the fourth defendant against the judgment and decree in O.S.No.962/1986 dated 8th February 2008 on the file of XV Addl. City Civil & Sessions Judge, Bangalore City. 2. Parties would be referred to as per their ranking in the trial court. 3. Suit was one for mandatory injunction directing the defendants to vacate the suit schedule property and deliver vacant possession to the plaintiff. 4. Plaintiff's case is that, she is the owner of the suit schedule property, which form portion of the entire property bearing new No.1, 1 B' Main Road, Gokul 1st Stage, 3rd Phase, Bangalore-560 054. 5. The total area measures East to West 53 feet, North to South 109 feet. The suit property measures 40 ft x 50 ft. In January 1984, after receiving the information that the defendants have trespassed into the suit schedule property, plaintiff's husband went to the spot and requested the defendants to vacate and hand-over the possession. When they refused to vacate the suit schedule property, cause of action accrued to the plaintiff on 16.5.1984 and accordingly, she filed the suit. 6. Defendant Nos.1 to 5 appeared through Counsel and filed written statement interalia denying the title of the plaintiff as the owner and claimed that they are in actual possession and enjoyment of the suit property from the time of their forefathers and they have perfected their title by adverse possession. They also claimed that, the plaintiff is a stranger to the suit schedule property. Further contended that, apart from defendants, there are two other persons, who are in actual possession of the suit schedule property, there is a dispute as to the identity of the suit schedule property. Originally, the defendants were agricultural labourers and they were working under one late Ramaiah, who was the landlord and while they were working so, they started residing on the suit schedule property. Defendants have continued to live in the said suit land without any objection from the plaintiff or anybody and as such, they have perfected title by adverse possession. Originally, the defendants were agricultural labourers and they were working under one late Ramaiah, who was the landlord and while they were working so, they started residing on the suit schedule property. Defendants have continued to live in the said suit land without any objection from the plaintiff or anybody and as such, they have perfected title by adverse possession. On these and other grounds, the defendants contested the suit by filing written statement. 7. The trial court framed the following issues: 1. Whether the plaintiff proves that she was the owner in possession of the suit schedule property as alleged? 2. Whether the plaintiff proves that the defendants illegally have put up huts in June, 1984 as alleged? 3. Whether the plaintiff is entitled to mandatory injunction and for possession of the suit property and for damages as alleged? 4. Whether the defendants prove that they have perfected their title of adverse possession as alleged? 5. Whether the defendants prove that they and two more families are in possession of entire area of 53'x109' and not the suit property only and thus the suit is bad for nonjoinder of necessary parties? 6. Whether the defendants prove that the court fee paid is insufficient as the court fee has to be paid on the price of the entire area as alleged? 7. What decree or order? 8. However, before the trial court, the defendants did not choose to lead any evidence nor they produced any document. On behalf of the plaintiff, the husband of the plaintiff was examined as PW-1 and one witness was examined as PW-2 and produced Exs.P1 to P12. 9. The trial court considering the evidence on record held that the plaintiff has proved her title to the suit schedule property. Though the defendants claim adverse possession, except raising bald plea, defendants did not lead any evidence and their plea was also inconsistent and accordingly, decreed the suit. Since the plaintiff had proved her title, the trial court decreed the suit for mandatory injunction and for a direction to the defendants to deliver vacant possession to the plaintiff. As against the same, defendant No.4 alone is in appeal. 10. Sri. Since the plaintiff had proved her title, the trial court decreed the suit for mandatory injunction and for a direction to the defendants to deliver vacant possession to the plaintiff. As against the same, defendant No.4 alone is in appeal. 10. Sri. V.B. Shivakumar, learned Counsel appearing defendant No.4 contended that, though the defendants have taken inconsistent plea, however, their possession is since prior to 1965, they have been in possession for more than 12 years next before the suit. Plaintiff has sought for possession, however, suit is barred by limitation. He further submitted that, the plaintiff has sought for mandatory injunction. To grant decree for mandatory injunction, to remove structure, then the suit must be for possession. When there is no specific decree sought for possession, the suit also fails for want of proper prayer. 11. On the other hand, Sri. T.R. Subbanna, learned Senior Counsel submitted that, except filing the written statement, the defendants have not contested the suit. Even in the written statement also, the plea of the defendants was that, the plaintiff is stranger to the property, when the defendants do not admit the title of the plaintiff, they cannot set up an adverse possession against the plaintiff. Hence, the possession of the defendants never became adverse to the plaintiff. He also relied on the judgment of the Apex Court reported in 2006 AIR SCW 4368 in the matter of T. Anjanappa & Ors. –vs.- Somalingappa & Anr. and submitted that, if the defendants are not sure as to who is true owner, question of their claiming hostile possession or question of denying title of true owner do not arise. Relying on the said judgment, he further submitted that, neither defendants are in adverse possession nor their possession is lawful, being trespassers, they have no right to continue in possession. When the plaintiff noticed that the defendants are in illegal possession, plaintiff has filed the suit. He further submitted that, the defendants having taken mutually contradicting plea in the written statement, Article 65 of the Limitation Act does not apply.