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2016 DIGILAW 511 (KAR)

Nirmal @ Jaya v. Ramesh Rao

2016-07-04

B.V.NAGARATHNA

body2016
JUDGMENT : B.V. Nagarathna, J. The legal representatives of the original defendant no. 1 have preferred this second appeal assailing judgment and decree passed in R.A. No. 485 of 2005 (Old R.A. No. 28 of 2003), dated 22-1-2009, by the Civil Judge (Senior Division) and ACJM, Karkala. By the said judgment and decree, the said Court has set aside the dismissal of the suit by the II Additional Civil Judge (Junior Division) at Karkala on 31-10-2002 in O.S. No. 2 of 1997 and has granted the relief sought by the plaintiff. 2. For the sake of convenience, the parties herein shall be referred to, in terms of their status before the Trial Court. 3. The first defendant-plaintiff filed the suit against the original defendant no. 1 and respondent no. 2 herein, who was arrayed as defendant no. 2 in the suit seeking the relief of possession. According to the plaintiff, he and second defendant are the owners of the "A" Schedule property, which belongs to them jointly. The first defendant at the instance of the second defendant put up a house bearing Door No. 4/161 (1) at Puttur Village in a portion of "A" Schedule property unauthorisedly and without the consent of the plaintiff. This was done a few years ago. The plaintiff asked first defendant to vacate, to which the latter pleaded time. Ultimately, plaintiff demanded that the first defendant remove the encroachment by notice dated 19-1-1996, to which, a false and vexatious reply was sent. It was contended by the first defendant that there was an oral agreement to sell "A" Schedule property in January 1983 to him pursuant to which, he paid the amount to second defendant from time-to-time and the first defendant had effected improvement and constructed a house on the basis of the agreement. 4. It is stated that the averments made in the reply notice is untrue. Even if first defendant has paid anything to the second defendant and if first defendant has made any improvements at the instance of second defendant, it is not valid and binding. Neither the second defendant nor the first defendant can burden the plaintiff with improvements. The plaintiff has absolute right in every inch of "A" Schedule property. He is entitled to possession of the "A" Schedule property from the first defendant on the basis of his title thereto. Neither the second defendant nor the first defendant can burden the plaintiff with improvements. The plaintiff has absolute right in every inch of "A" Schedule property. He is entitled to possession of the "A" Schedule property from the first defendant on the basis of his title thereto. The annual income of the first defendant from the suit schedule property is Rs. 3,000/- per year. Plaintiff wanted to take recovery of possession from the first defendant. Second defendant is a proper party, as he was not willing to join the plaintiff, he has been arrayed as second defendant. The cause of action arose on 29-2-1996 when the first defendant was asked to quit. Plaintiff therefore sought for a judgment and decree for possession of "A" Schedule property with mesne profit at Rs. 3,000/- per year from the first defendant. 5. In response to the suit summons and Court notice, first defendant appeared and filed his written statement stating that the first defendant was instigated by second defendant in putting up a house and that too unauthorisedly and without the consent of the plaintiff. While admitting the legal notice dated 29-2-1996, the first defendant reiterated what was stated by him in his reply dated 10-3-1996. He contended that there was an oral agreement entered into between the plaintiff and second defendant on the one hand, on the other hand, for sale of plaint "A" Schedule property to him and on the basis of the said agreement, he had constructed a tiled residential building and effected improvements thereon. It was denied that plaintiff had absolute right in every inch of the plaint "A" Schedule property on the basis of this title. It was denied that the first defendant was bound to vacate and surrender plaint "A" Schedule property to the plaintiff. 6. While denying the various averments of the plaintiff, defendant no. 1 contended that the plaintiff and his brother-second defendant jointly expressed their willingness to sell the suit property to him. By mutual consent and on oral agreement, defendant agreed to purchase the suit property for Rs. 60,000/- and the plaintiff and second defendant agreed to sell the same for Rs. 60,000/-. The suit property was dry, barren land without there being any income therefrom. The oral agreement was entered into in the second week of January 1983 i.e., on 8-1-1983. By mutual consent and on oral agreement, defendant agreed to purchase the suit property for Rs. 60,000/- and the plaintiff and second defendant agreed to sell the same for Rs. 60,000/-. The suit property was dry, barren land without there being any income therefrom. The oral agreement was entered into in the second week of January 1983 i.e., on 8-1-1983. The plaintiff and second defendant had put the first defendant in possession and enjoyment of the plaint "A" Schedule property in the second week of January 1983 i.e., on 8-1-1983 in accordance with the oral agreement of sale. The first defendant took possession of the suit property on that day and he was in actual lawful possession and enjoyment of the suit property. First defendant submitted that pursuant to the oral agreement, he had paid Rs. 5,000/- as advance out of the total sale price of Rs. 60,000/- to the first plaintiff and the second defendant on the date of the agreement dated 8-1-1983. He had paid Rs. 20,000/- in the year 1988; Rs. 5,000/- in 1989, Rs. 5,000/- in 1991 and again, an amount of Rs. 3,000/- in 1991 to the second defendant, who had received the same on his behalf as well as on behalf of the plaintiff towards the balance sale price. 7. Defendant no. 1 further contended that he had effected improvement on plaint "A" Schedule property out of his hard earned money and constructed the house and he was ready and willing to purchase "A" Schedule property by means of a registered sale deed by paying the balance sale consideration amount. He was not in illegal or unauthorised possession of the plaint "A" Schedule property or the building existing thereon and had not encroached upon the suit property and that his possession and enjoyment of the suit property was legal and proper. Plaintiff in collusion with second defendant, by suppressing the truth and by stating that there was an oral agreement to sell the suit property to the second defendant had filed the suit. The first defendant therefore, sought dismissal of the suit. 8. The second defendant, who is the brother of the plaintiff, appeared and filed his written statement denying that he had instigated the first defendant to put up the house or that there was an oral agreement to sell "A" Schedule property to defendant no. The first defendant therefore, sought dismissal of the suit. 8. The second defendant, who is the brother of the plaintiff, appeared and filed his written statement denying that he had instigated the first defendant to put up the house or that there was an oral agreement to sell "A" Schedule property to defendant no. 1 or that the first defendant had agreed to purchase the suit property for Rs. 60,000/- or that he was in possession of the suit property on that basis since 8-1-1983. Second defendant denied that he had received any sum of money from the first defendant or that the first defendant had made improvements on the suit schedule property. Second defendant contended that the first defendant requested him to permit him to occupy 0.05 acres of land ultimately agreeing to put up a small hut. Out of sympathy and knowing the plight of the first defendant, with the confidence that the first defendant would vacate the premises, he had permitted him to stay there after permitting him to put up a small construction. First defendant agreed to add and extend the existing construction despite objections and protests by the second defendant. Second defendant contended that the possession of the defendant is illegal and as he had no title to the property and he was bound to vacate the same. Therefore, second defendant prayed that the Trial Court be pleased to decree the suit. 9. On the basis of the rival pleadings, the Trial Court framed the following issues and additional issues for its consideration: "1. Whether plaintiff proves that 1st defendant at instance and instigation of the 2nd defendant put up a building bearing Door No. 4-161 (1) of Puthige Village in a portion of suit property unauthorisedly and without his consent? 2. Whether the plaintiff proves that annual income of the property in possession of 1st defendant is Rs. 3,000/- and he is entitled to recover the same from the 1st defendant? 3. Whether plaintiff proves that he is entitled to recover possession of the suit building from the 1st defendant? 4. Whether 1st defendant proves that he is in actual, peaceful possession and enjoyment of the suit property since 8-1-1983 and by virtue of oral agreement of sale entered into between himself, plaintiff and 2nd defendant, his possession is not wrongful illegal and unauthorised? 5. 4. Whether 1st defendant proves that he is in actual, peaceful possession and enjoyment of the suit property since 8-1-1983 and by virtue of oral agreement of sale entered into between himself, plaintiff and 2nd defendant, his possession is not wrongful illegal and unauthorised? 5. Whether 1st defendant proves that he has validly effected vast improvements out of his earned money by investing more than Rs. 2,00,000/- with the knowledge of the plaintiff and 2nd defendant and the same is binding on them? As contended at Para VIII of the written statement? 6. Whether 1st defendant proves that his physical possession over the suit property since 8-1-1983 is adverse, notorious, uninterrupted and lawful to the knowledge of the plaintiff and he has acquired valid title and interest over the suit property by adverse possession and enjoyment as contended at para 12 of the written statement? 7. To what relief the parties are entitled? Additional Issue: Whether the claim of the plaintiff for possession of the suit property is barred by law of limitation?" 10. In order to substantiate his case, plaintiff examined one Vasanth Kamath, Power of Attorney Holder for the plaintiff. He produced five documents which were marked as Exs. P. 1 to P. 5. Defendant No. 1 examined himself as D.W. 1 and got examined another witness as D.W. 2. Defendant No. 2 did not let in any evidence. Defendant No.1 produced five documents, which were marked as Exs. D. 1 to D. 5. 11. On considering the said evidence, the Trial Court dismissed the suit especially on two aspects. Firstly, by holding that the suit was barred by limitation inasmuch as under Article 65 of the Limitation Act, 1963 the suit had to be filed within 12 years. In the instant case, first defendant had taken possession of "A" Schedule property on 8-1-1983 and therefore, the suit could not have been filed in the year 1997. Reference was made to Article 65, which deals with suit for possession of any immovable property or any interest therein based on title under which, the limitation period is twelve years, when possession of defendant becomes adverse to the plaintiff. Reference was made to Article 65, which deals with suit for possession of any immovable property or any interest therein based on title under which, the limitation period is twelve years, when possession of defendant becomes adverse to the plaintiff. Reference was also made to Section 27 of the Limitation Act, 1963 to hold that if any person does not institute a suit for possession of any property within the period of limitation, then his right to seek possession shall be extinguished. 12. Secondly, on merits, the Trial Court held that the first defendant was in possession of the suit schedule property on the basis of an oral agreement dated 8-1-1983 entered into between the plaintiff and second defendant with first defendant, to sell the suit schedule property for a valuable consideration of Rs. 60,000/- and therefore, under Section 53-A of the Transfer of Property Act, 1882 the first defendant could resist the suit and protect his possession of the suit property. 13. Being aggrieved by the dismissal of the suit by the Trial Court, plaintiff preferred R.A. No. 485 of 2005 (Old R.A. No. 28 of 2003) before the First Appellate Court and on hearing the learned Counsel for parties, it framed the following point for its consideration: "Whether impugned judgment and decree of the Trial Court is illegal, arbitrary, capricious or not in accordance with existing facts and circumstances of the case calling for interference?" 14. The First Appellate Court reversed the findings of the Trial Court by holding that the suit was maintainable and not barred by law of limitation and that Section 53-A of the Transfer of Property Act was not applicable. It decreed the suit by directing the first defendant to hand over vacant possession of the entire suit schedule property to the plaintiff within a period of three months from that day. The prayer for mesne profit was rejected for want of material evidence. Being aggrieved by the judgment and decree of the First Appellate Court dated 22-1-2009, legal representatives (L.Rs) of the first defendant have preferred this second appeal. 15. I have heard learned Counsel for appellants, learned Counsel for respondents nos. 1 and 2 and perused the material on record. 16. Being aggrieved by the judgment and decree of the First Appellate Court dated 22-1-2009, legal representatives (L.Rs) of the first defendant have preferred this second appeal. 15. I have heard learned Counsel for appellants, learned Counsel for respondents nos. 1 and 2 and perused the material on record. 16. Appellants' Counsel contended that the suit filed by the plaintiff was not maintainable as the said suit was filed after twelve years from the date on which the right to sue occurred. She placed reliance on Article 65 of the Limitation Act, 1963 and contended that a suit, in order to obtain possession of immovable property or any interest therein based on title, must be filed within twelve years from the time when the possession of the defendant becomes adverse to the plaintiff. She contended that in the instant case, since 8-1-1983, the defendant was in possession. All along he continued to be in peaceful possession of the suit schedule property. The lapse of time resulted in his possession becoming adverse to that of plaintiff. Therefore, the suit ought to have been filed within a period of twelve years from the date possession of the suit schedule property by the first defendant became adverse to that of the plaintiff. She contended that the suit filed in the year 1997 was beyond the prescribed period of limitation and consequently, under Section 27 of the said Act, plaintiff's right to the suit schedule property stood extinguished. She contended that Section 27 of the Limitation Act, 1963 specifically refers to a suit for possession of any property and that in the absence of the suit being filed within the limitation period, plaintiff right to the suit schedule property stood extinguished. Therefore, supporting the judgment of the Trial Court learned Counsel for the appellant contended that the First Appellate Court has not considered this aspect of the matter in its proper perspective. 17. She further contended that the suit schedule property came into possession of the first defendant under an oral agreement to sell dated 18-1-1983. That first defendant in fact had paid substantial amount by way of advance sale consideration to second defendant, which is falsely denied by him. 17. She further contended that the suit schedule property came into possession of the first defendant under an oral agreement to sell dated 18-1-1983. That first defendant in fact had paid substantial amount by way of advance sale consideration to second defendant, which is falsely denied by him. Coming into possession of the suit schedule property under the said agreement, first defendant was entitled to protect his possession and resist any attempt made by the plaintiff or for that matter, second defendant to take back possession. She contended that the Trial Court was right in applying Section 53-A of the Transfer of Property Act, 1882 and thereby, dismissing the suit. The First Appellate Court has not applied its mind to that aspect of the matter and has decreed the suit thereby granting the relief to the plaintiff, which is erroneous. She contended that substantial question of law would arise in this appeal and that the appeal may be admitted to consider the same in a detailed manner. 18. Per contra, learned Counsel for first respondent-plaintiff, supporting the judgment and decree of the First Appellate Court submitted that in the first instance, the doctrine of part performance as enunciated in Section 53-A of the Transfer of Property Act would not apply in the instant case, inasmuch as, such a doctrine would apply only when the agreement to sell between the parties is in writing and after amendment of the said Act has also to be registered. In the instant case, since first defendant has relied on an oral agreement to sell, first defendant cannot take shelter under Section 53-A of the Transfer of Property Act. In fact, the said defence is wholly false. He contended that first defendant requested for shelter and therefore, the plaintiff and second defendant had permitted him to stay in a portion of the suit schedule property and he was also permitted to put up a small temporary construction but first defendant taking advantage of his possession of the suit schedule property, had put up a permanent construction, which is illegal. The improvements made on the suit schedule property were at the risk of first defendant and without seeking any permission from the plaintiff. He therefore submitted that the Trial Court was not right in holding that under Section 53-A of the Transfer of Property Act, 1882 first defendant was entitled to protect his possession. 19. The improvements made on the suit schedule property were at the risk of first defendant and without seeking any permission from the plaintiff. He therefore submitted that the Trial Court was not right in holding that under Section 53-A of the Transfer of Property Act, 1882 first defendant was entitled to protect his possession. 19. Secondly, he submitted that if the defence of the first defendant was that he came into possession of the suit schedule property under an oral agreement, Article 65 of the Limitation Act would not apply and that Article would apply only when the possession of the defendant becomes adverse to the plaintiff. In the instant case, the question of adverse possession of the first defendant vis-a-vis plaintiff or for that matter, second defendant does not arise as the first defendant came into possession of the suit schedule property under an oral agreement to sell the suit property to him by plaintiff and first defendant as contended by first defendant. If he has been in possession of the suit property under an oral agreement, then he is not in adverse possession. Therefore, time does not run under Article 65 of the Limitation Act and the same is not applicable. Consequently, Section 27 of the Limitation Act also does not apply. He contended that the defence of the first defendant being false, the legal contentions are contrary to law and also, inherently contradictory. He submitted that there is no substantial question of law which would arise in the appeal and the appeal may be dismissed in limine. 20. Having heard learned Counsel for the parties and on perusal of the material on record, there is no dispute that the plaintiff and second defendant are brothers, who are the joint owners of the suit schedule property. It is also not in dispute that the first defendant is in possession of "A" Schedule property. While plaintiff contended that the possession was permissive possession and it was granted to him temporarily, first defendant's case that it was granted under an oral agreement to sell the property to him and therefore, his possession was illegal. In order to defend his possession, first defendant sought recourse to Section 53-A of the Transfer of Property Act. While plaintiff contended that the possession was permissive possession and it was granted to him temporarily, first defendant's case that it was granted under an oral agreement to sell the property to him and therefore, his possession was illegal. In order to defend his possession, first defendant sought recourse to Section 53-A of the Transfer of Property Act. It is no doubt true that doctrine of part performance would operate as shield, insofar as the transferee is concerned as against a transferor or anybody claiming under him provided he is a transferee under a written instrument. But in the instant case, it is the specific case of the first defendant that he came into possession of the suit property under an oral agreement. Therefore, he cannot take shelter under Section 53-A of the Transfer of Property Act, as the same is not applicable. The First Appellate Court has rightly held that the said section is not applicable while considering the judgment of the Trial Court. In my view, the Trial Court had erroneously applied Section 53 of the Transfer of Property Act, to the case on hand and the First Appellate Court has rightly reasoned on this aspect of the matter. 21. As far as the maintain ability oi the suit is concerned, it can be answered by keeping in mind the defence of first defendant. He contends that he came into possession of the suit schedule property under an oral agreement. Therefore, his possession can never be adverse to that of the plaintiff or second defendant. When a person is put in possession of immovable property pursuant to an agreement, oral or documentary, such possession cannot be held to be adverse vis-a-vis the owner of the property. 22. It is noted from the memorandum of appeal that three substantial questions of law have been raised by the appellant. These are with reference to the first defendant perfecting his title by way of adverse possession and enjoyment of the Schedule "A" property. The said substantial questions of law would have arisen if the first defendant had established that his possession of the suit schedule property had become adverse to that of the plaintiff and second defendant and therefore, had perfected his title by adverse possession. That is not the case of first defendant. The said substantial questions of law would have arisen if the first defendant had established that his possession of the suit schedule property had become adverse to that of the plaintiff and second defendant and therefore, had perfected his title by adverse possession. That is not the case of first defendant. His specific case is that he came into possession of the suit schedule property under an oral agreement dated 8-1-1983 between the plaintiff and second defendant. Therefore, his possession of the suit schedule property was not at all adverse to that of plaintiff and second defendant. In this regard, submission of the learned Counsel for first respondent was that first defendant was permitted to occupy a small house in the suit schedule property which was under the permissive possession and not that possession was handed over pursuant to any agreement or even an oral agreement with the first defendant. In that view of the matter, no substantial question of law would arise in this appeal. The appeal is hence, dismissed. 23. Parties to bear their respective costs. 24. In view of the dismissal of the appeal, I.A. No. of 2016 is also dismissed.