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2014 DIGILAW 887 (KAR)

Y. S. Subbanna v. Y. S. Lakshman Rao

2014-10-13

A.V.CHANDRASHEKARA

body2014
Judgment : 1. Lone defendant of an original suit bearing O.S.No.264/1992 which was pending on the file of the Munsiff & JMFC at Doddaballapur, is before this Court having filed an appeal under Section 100 of CPC. Respondent is the sole plaintiff in the said suit. 2. Parties will be referred to as plaintiff and defendant as per their ranking in the Trial Court. 3. Suit of the plaintiff filed for the reliefs of declaration of title and permanent injunction in respect of two vacant sites as described in the schedule appended to the plaint was decreed as prayed for, as against which, the defendant chose to file an appeal before the Court of Civil Judge (Sr.Dn.) at Bangalore District, Bangalore, in R.A.No.60/2000 which was renumbered as R.A.No.45/2002. The said appeal has been allowed in part on 30.11.2006 confirming the decree passed in respect of suit schedule item 'b' schedule property and in respect of 'a' property suit is rejected. Being aggrieved by the confirmation of the decree in respect of item 'b' of the suit schedule property, the present appeal is filed. 4. Heard the learned counsel for the appellant. Perused the original records of both the Courts. Several grounds have been urged in the appeal memo filed under Section 100 of CPC. Several questions of law have been proposed as substantial questions of law with a request to admit the present appeal. 5. Plaintiff is stated to be in lawful possession and enjoyment of two vacant sites as described in schedule 'a' and 'b' in the plaint. Schedule 'a' bears Khaneshumari No.69 measuring 40 feet East to West and 56 feet North to South. Schedule 'b' measures Khaneshumari No.66/1 renumbered as 30 measuring East to West 40 feet and North to South 40 feet. The boundaries of both sites have been specifically mentioned in the schedule appended to the plaint. According to the plaintiff, he is the own brother of the defendant and a family partition took place on 28.08.1955 amongst them. Schedule 'b' measures Khaneshumari No.66/1 renumbered as 30 measuring East to West 40 feet and North to South 40 feet. The boundaries of both sites have been specifically mentioned in the schedule appended to the plaint. According to the plaintiff, he is the own brother of the defendant and a family partition took place on 28.08.1955 amongst them. After the death of their father Y.S.Shamarao, compromise was entered into between them on 18.01.1980 in O.S.No.166/1978 on the file of the Court of Civil Judge, Bangalore Rural District and in the compromise entered into between the plaintiff and the defendant and other members of the family, these two properties have fallen to his share and since then, he has been in lawful possession and enjoyment of the schedule properties. 6. Defendant has filed detailed written statement admitting the relationship between the parties. He has called upon the plaintiff to prove all the contents of the plaint. According to him, schedule 'A' and 'B' properties bearing Khaneshumari Nos.69, 66/1 and 130 do not exist. According to him, old Khaneshumari number is incorporated in the Mandal Panchayats and a new number is given and the same is 97. According to him, old Khaneshumari Nos.66/2, 66/1 and 130 are given new No.79. Defendant has incorporated the schedule lands in the Mandal Panchayat in his name and he is in exclusive possession of the same. He is stated to be in lawful possession of the schedule. He is stated to be in possession right from 1955 openly to the knowledge and adversely to the interest of the plaintiff and thus he has acquired title by way of adverse possession. With these pleadings he had requested the court to dismiss the suit. 7. On the basis of the above pleadings, the following issues came to be framed on 06.06.1995: 1. Whether plaintiff proves he has been in peaceful possession & enjoyment of the suit schedule property exclusively? 2. Whether plaintiff proves the measurement of the suit schedule properties are wrongly mentioned in compromise in O.S.No.166/78? 3. Whether plaintiff proves interference caused by the defendant as stated in para 8 of the plaint? 4. Whether defendant proves he has perfected his title by prescription & adverse possession in respect of suit schedule properties? 5. What decree or order? 8. Whether plaintiff proves the measurement of the suit schedule properties are wrongly mentioned in compromise in O.S.No.166/78? 3. Whether plaintiff proves interference caused by the defendant as stated in para 8 of the plaint? 4. Whether defendant proves he has perfected his title by prescription & adverse possession in respect of suit schedule properties? 5. What decree or order? 8. Plaintiff is examined as PW1 and two witnesses have been examined on his behalf apart from getting four exhibits marked. Defendant is examined as DW1 and two witnesses have been examined on his behalf and 32 exhibits have been got marked on his behalf. After going through the records, the learned Civil Judge (Jr.Dn.) & JMFC, Doddaballapur, has answered issue Nos.1 to 3 in the affirmative and issue No.4 in the negative. Ultimately, the suit came to be decreed. 9. Against the said judgment and decree, defendant chose to file an appeal under Section 96 of CPC before the Court of Civil Judge (Sr.Dn.) at Doddaballapur, in R.A.No.60/2000 which was numbered as R.A.No.45/2002. Subsequently, the said appeal has been allowed in part by confirming the judgment and decree in respect of schedule 'b' property and rejecting the prayer in respect of 'A' property vide judgment dated 30.11.2006. Against the said judgment and decree, the plaintiff chose to file an appeal before this Court under Section 100 of CPC in RSA No.271/2007. A copy of the judgment passed by this Court in RSA No.271/2007 is a part of the original records sent to this Court by the Trial Court as well as the Appellate Court. 10. The said appeal RSA No.271/2007 is the second appeal filed by the plaintiff against the defendant insofar as the rejection of the reliefs of declaration of title and permanent injunction in respect of 'a' schedule property. 11. Perused the said judgment passed by this Court on 01.04.2010 in RSA No.271/2007. By the time RSA No.271/2007 filed by the plaintiff against the divergent judgment of the First Appellate Court was taken up for consideration in regard to admission, the present appeal had already been filed. As is seen from the records, the same advocates appearing for the parties in the present appeal were the Advocates in RSA No.271/2007. This Court has disposed of RSA No.271/2007 not only after hearing the learned counsel for the appellant but also the learned counsel appearing for the respondent therein. As is seen from the records, the same advocates appearing for the parties in the present appeal were the Advocates in RSA No.271/2007. This Court has disposed of RSA No.271/2007 not only after hearing the learned counsel for the appellant but also the learned counsel appearing for the respondent therein. Paragraph-8 at page No.5 of the judgment passed by this Court in RSA No.271/2007 specifically speaks about the participation of both the advocates in regard admission of that matter. 12. While considering the matter for admission in RSA No.271/2007, this Court has not only considered the case of the parties but also considered the entire case of the parties with reference to both the items. There cannot be any acquisition of title by way of adverse possession when the parties are closely related. Admittedly, the defendant is none other than the brother of the plaintiff and he cannot set up the plea of adverse possession. The plea of adverse possession is a special plea which requires the person taking up such defence to establish the same by producing unimpeachable evidence. The person seeking the plea of adverse possession is not only expected to prove that he has had been in possession of the property for over a period of 12 years but he is expected to prove that he has held the said property openly to the knowledge and adversely to the interest of the original owner. Suffice to state that the plea of adverse possession is a very weak plea amongst the persons who are closely related. This aspect of the matter has been taken into consideration by this Court while deciding RSA No.271/2007. 13. Added to this, some important admissions culled out from the mouth of defendant has been taken into consideration to reject the stand taken up by the defendant. Civil cases will be decided on the basis of broad preponderance of probabilities. The admission so culled out is an admission for all practical purposes under Sections 17 and 21 of the Evidence Act and that has been viewed in the light of the inability of the defendant in failing to prove the said plea of adverse possession. 14. The First Appellate Court, being the final Court of facts, has re-assessed the entire evidence in right perspective. 14. The First Appellate Court, being the final Court of facts, has re-assessed the entire evidence in right perspective. It has adopted right approach to the real state of affairs, more particularly, when this Court has considered the entire gamut of case while disposing of RSA No.271/2007 on 01.04.2010. Suffice to state that the questions of law proposed in the appeal memo are not at all substantial questions of law within the purview of Section 100 of CPC. Hence, appeal is liable to be dismissed as unfit for admission. ORDER Appeal is dismissed as unfit for admission. Parties to bear their own costs.