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2017 DIGILAW 1461 (KAR)

Gubbawwa v. Guralingayya Gangayya Ganachari

2017-11-07

SREENIVAS HARISH KUMAR

body2017
JUDGMENT : 1. The defendants No.4, 6 to 10 have filed this Appeal aggrieved by the judgment and decree dated 7.4.2006 in O.S.No.25/2001 on the file of Principal Civil Judge (Senior Division), Bagalkot. During the pendency of this Appeal, appellant No.4 died and his legal representatives have been brought on record. For narration of facts, the parties are referred with respect to their positions in the suit for the sake of convenience. 2. The subject matter of the suit is 4 acres 10 guntas of land in Sy.No.190/32 of Muchakandi Village (hereafter referred to as ‘the suit property’). This was a Vatan land earlier and granted to the ancestors of defendants 1 to 3. These defendants were not cultivating the land personally. The ancestors of the other defendants were cultivating the land in the capacity of inferior holders. The husband of defendant No.4 and father of defendants 5 and 6, namely Shivappa Lamani, as also defendant No.8, Manappa, executed an agreement of sale in favour of plaintiff on 7.4.1986 agreeing to sell the suit property in his favour for a consideration of Rs.10,000/-. Shivappa and Manappa received the entire sale consideration from the plaintiff and delivered the possession of the suit property to him. Even before this agreement came into existence, the plaintiff was in actual possession of the suit property since 1972-73. The plaintiff applied to the Land Tribunal seeking occupancy rights of the suit property, but his application was rejected as he was in possession of the suit property on the basis of agreement of sale. Since Shivappa and Manappa did not execute the sale deed, he filed a suit O.S.94/1995 before Civil Judge (Junior Division), Bagalkot, for specific performance of the agreement. This suit was dismissed. He preferred an Appeal R.A.20/1998 to the Court of I Addl. Civil Judge (Senior Division), Bagalkot. This Appeal was also dismissed. The plaintiff then preferred a Second Appeal before this Court in RSA 349/2000 and it was also dismissed. In spite of dismissal of the suit and the Appeals, all the Courts consistently held that the plaintiff was in possession of the suit property and in fact, defendants 4 to 11 also admitted the possession of the plaintiff when they filed written statement in the suit for specific performance. The defendants 1 to 3 who were the erstwhile owners of the suit property never disturbed the plaintiff’s possession. The defendants 1 to 3 who were the erstwhile owners of the suit property never disturbed the plaintiff’s possession. Defendants 1 and 2 did not file written statement in O.S. 94/1995 and defendant No.2 remained ex-parte. In the suit for specific performance, it was also held that Shivappa and Manappa did not have the right to execute the sale deed as they had no title over the suit property. In this background, the plaintiff states that he has been in possession of the suit property for more than 12 years adverse to the interest of the defendants and, therefore, he has perfected his title by adverse possession. 3. Defendants 4 to 11 initiated proceedings before the Tahsildar for removal of the name of the plaintiff from the revenue records. He apprehended threat of dispossession by the defendants 4 to 11 because of their move to get the name of the plaintiff removed from the revenue records. He apprehended threat of dispossession by the defendants 4 to 11 because of their move to get the name of the plaintiff removed from the revenue records and therefore he brought a suit seeking declaration that he had perfected his title and ownership in respect of the suit property and consequential permanent injunction restraining the defendants from dispossessing him from the suit property without due process of law. 4. The defendant Nos.4 to 11 in their written statement denied all the plaint averments and contended that in view of all the three Courts holding that the plaintiff was not entitled to a decree of performance, the plaintiff was in no way concerned with the suit land nor he would derive title or interest. 5. The trial Court raised the following issues on the basis of the pleadings:- “1. Whether the plaintiff proves that he has perfected his tile to the suit property by adverse possession? 2. Whether the defendants No.4 to 11 prove that they are the absolute owners and in lawful possession and enjoyment of the suit property? 3. Whether the plaintiff is entitled for the relief of declaration and injunction as sought for? 4. To what order or decree? 6. The plaintiff himself adduced evidence as PW1 and produced 14 documents as per Exs.P1 to P14. From the defendants’ side, defendant No.9 adduced evidence as DW1 and produced 4 documents Exs.D1 to D4. 3. Whether the plaintiff is entitled for the relief of declaration and injunction as sought for? 4. To what order or decree? 6. The plaintiff himself adduced evidence as PW1 and produced 14 documents as per Exs.P1 to P14. From the defendants’ side, defendant No.9 adduced evidence as DW1 and produced 4 documents Exs.D1 to D4. The trial Court after appreciating the evidence decreed the suit. 7. The learned counsel for the appellants/defendants 4, 6 to 10 argued that the trial Court committed an error in law and on facts in decreeing the suit of the plaintiff. When the plaintiff’s suit for specific performance was dismissed and later on confirmed by the Appellate Courts, the plaintiff was not entitled to seek a relief of declaration that he had perfected his title by adverse possession. He argued that the plaint does not disclose the date when his possession became hostile and adverse to the interest of the true owners. When he claimed to be in possession of the suit property on the basis of the agreement, he could not have claimed adverse possession. His possession would become adverse 12 years after the decision of this Court in the Second Appeal. The trial Court lost sight of this fact. Moreover, the plaintiff cannot bring a suit seeking declaration of title by adverse possession, such a suit is held by the Supreme Court as not maintainable. The plea of adverse possession cannot be a sword but it can be a shield. When the main relief itself cannot be granted, the consequential relief of injunction also cannot be granted. Therefore, the trial Court erred in decreeing the suit. In support of his arguments, he relied upon the judgment of this Court in the case of Pilla Akkayyamma and Others vs. Channappa and Others [ILR 2015 KAR 3841] and the Supreme Court in the case of Gurudwara Sahib vs. Gram Panchayath Village, Sirthala and Another [ 2014 (1) SCC 669 ]. 8. The learned counsel for the respondent No.1 argued for sustaining the judgment of the trial Court. In regard to declaratory decree that the trial Court has granted, it was his argument that if a person possess an immovable property for more than 12 years adversely to the interest of the true owner, a right will accrue in his favour under Section 27 of the Limitation Act. In regard to declaratory decree that the trial Court has granted, it was his argument that if a person possess an immovable property for more than 12 years adversely to the interest of the true owner, a right will accrue in his favour under Section 27 of the Limitation Act. When the right of the true owner to take back possession extinguishes, obviously the person in possession gets a right to continue in possession and any threat to his possession will give rise to a cause of action to seek declaration of his possessory title which will in due course of time transform into absolute right. It can also be a sword to protect his possession, he need not wait till a suit is filed against him. 9. His second point of argument was that his possession over the suit property is accepted by all the three Courts in the earlier litigation for specific performance. When he is in possession, he cannot be evicted without due process of law. Even if declaratory relief cannot be granted in view of the judgment of the Supreme Court in the case of Gurudwara Sahib (supra), he is entitled to protect his possession and for that reason the relief of injunction granted by the trial Court cannot be set aside. He also argued that there is no bar as such for granting the relief of permanent injunction which is sought as an ancillary relief when the main relief of declaration is denied. 10. In the light of the above arguments, the points that can be raised for discussion are: (i) Has the trial Court erred by declaring that the plaintiff has perfected his title over the suit property by adverse possession? (ii) Whether the decree of permanent injunction can be sustained if the plaintiff is held to be not entitled to declaratory relief? (iii) What order? Point No.(i):- 11. The proposition advanced by the respondent’s counsel that whenever there is a threat to a person who is possession of an immovable property adversely to the interest of the true owner, is quite plausible and has force. Section 27 of the Limitation Act makes it very clear that on determination of the period limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. Section 27 of the Limitation Act makes it very clear that on determination of the period limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. That means if the true owner does not recover possession within 12 years from the day the person in possession of the property sets up interest hostile to the true owner, the former loses his right to recover possession and this will enure to the benefit of the person in possession. But, it is now well established view, as has been held by the Supreme Court in the case of Gurudwara Sahib (supra) that the plaintiff cannot seek a declaration to the effect that his adverse possession has matured into his ownership; He can only shield his possession. This Court also in the case of Pilla Akkayyamma (supra) by following Gurudwara Sahib (supra) held that adverse possession can be protected as a shield. Therefore, the declaratory relief that the trial Court has granted in favour of the plaintiff is opposed to the dictum of the Supreme Court. Thus, it cannot be sustained. Point No.(1) is therefore held in affirmative. Point No.(ii):- 12. The trial Court has given a finding that the plaintiff is in possession of the suit property. The trial Court referred to Ex.P3, the agreement dated 7.4.1986 to come to the conclusion that plaintiff’s possession has been forthcoming and that he was in possession already even before the agreement was executed. The RTC extracts produced as per Exs.P6 to P9 also disclose the possession of the plaintiff since 1972-73 and till the date of filing of the suit. Defendants 4 to 11 have not produced any document to show that they took over the possession of the suit property after 1972-73. I have gone through Ex.P3, the agreement of sale, which discloses that possession of the suit property was with the plaintiff even before the said agreement was executed. From the RTC extracts marked Exs.P6 to P9, the plaintiff’s possession is forthcoming in column No.12. If the possession had been taken by the defendants according to due process of law, they should have produced documents to show that they are in possession after dispossessing the plaintiff. No document is produced. From the RTC extracts marked Exs.P6 to P9, the plaintiff’s possession is forthcoming in column No.12. If the possession had been taken by the defendants according to due process of law, they should have produced documents to show that they are in possession after dispossessing the plaintiff. No document is produced. Therefore, the inference that can be drawn is the plaintiff was in possession of the suit property on the date of suit. The finding of the trial Court to this effect is correct. 13. The argument that the learned counsel for the appellant has advanced that even the ancillary relief of permanent injunction cannot be granted when the plaintiff is found to be not entitled to relief of declaration, cannot be accepted. Merely because the plaintiff is not entitled to declaratory relief, it cannot be said that he is not entitled to decree of permanent injunction. When his possession over the suit property is very much forthcoming, his possession has to be protected. If the defendants are entitled to take back possession from the plaintiff, they can do so only be resorting to due process of law. When the relief of injunction can be independently sought, it is highly impossible to accept the argument that the relief of injunction cannot be granted when it is sought as an ancillary relief. It all depends on the facts and circumstances of the given case. Therefore, I am of the opinion the decree of permanent injunction granted by the trial Court needs to be sustained, but with some modification. Since it is held that the plaintiff is not entitled to declaration, if at all the defendants want to take possession from him, it should only be according to due process of law. Therefore, all that the plaintiff is entitled to is protection from illegal dispossession. With this observation, point No.(ii) is answered in affirmative. Point No.(iii):- 14. In view of discussion on points No.(i) and (ii), the Appeal deserves to be allowed partly. The decree of permanent injunction granted needs to be modified and hence the following order: (a) Appeal is allowed. (b) Judgment and decree dated 7.4.2006 in O.S.No.25/2001 on the file of Principal Civil Judge (Senior Civil Judge), Bagalkot, is modified. The suit for declaration is dismissed. (c) Decree of permanent injunction is granted restraining the defendants from dispossessing the plaintiff from the suit property without due process of law. (b) Judgment and decree dated 7.4.2006 in O.S.No.25/2001 on the file of Principal Civil Judge (Senior Civil Judge), Bagalkot, is modified. The suit for declaration is dismissed. (c) Decree of permanent injunction is granted restraining the defendants from dispossessing the plaintiff from the suit property without due process of law. There is no order as to costs.