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2019 DIGILAW 1408 (KAR)

Reddamma D/o Late Sonnappa v. T. S. Reddappa

2019-06-24

K.S.MUDAGAL

body2019
JUDGMENT : K.S. Mudagal, J. This second appeal of the plaintiff arises out of the judgment and decree dated 26.11.2014 passed by Fast Track Court-II, Chintamani in R.A.No.18/2011. 2. By the impugned judgment and decree, the First Appellate Court allowed the appeal of the present respondent and modified the judgment and decree dated 01.02.2011 passed by the Senior Civil Judge & JMFC, Chintamani in O.S.No.177/2007 and dismissed the suit of the plaintiff for partition and separate possession of her share in respect of plaintiff schedule item Nos.1 and 3 properties. Whereas the trial Court by the said judgment and decree had decreed the suit of the plaintiff for partition and separate possession of her 1/2 share in all the suit schedule properties. 3. Appellant was plaintiff and respondent was defendant before the trial Court. For the purpose of convenience, parties will be referred to henceforth with their ranks before the trial Court. 4. Subject matter of the suit were as follows: (i) The land bearing Survey No.117/3 measuring about 25 guntas, including 2 guntas of Kharab, situated at Thimmasandra village, Ambajidurga Hobli, Chintamani taluk; (ii) The house property bearing Municipal Katha No.244/207 measuring about East-West : 19 feet, North-South : 19 feet consisting of stone roofed h e, situated at Thimmasandra Chintamani town. (iii) The house property bearing Municipal Katha No.251/214 measuring about East-West : 161/2 feet and North-South : 31 feet consisting of house, situated at Thimmasandra, Chintamani town. Items 2 and 3 are situated in a single plot; (iv) The vacant site bearing Municipal Katha No.247/210 measuring about East-West :98 feet and North-South :26 feet situated at Thimmasandra village, Chintamani town. 5. Plaintiff was daughter and defendant was son of one Sonnappa. Sonnappa died on 09.06.2007. Sonnappa's wife predeceased him. Admittedly, the suit properties were the ancestral properties of Sonnappa. 6. Plaintiff claimed that defendant was not taking care of his parents and after the death of Sonnappa, he denied to effect partition and deliver her 1/2 share in the suit schedule properties. 7. Defendant did not dispute claim of plaintiff in respect of plaint schedule item Nos.2 and 4 properties. So far as plaint schedule item Nos.1 and 3 properties, he contended that during the life time of Sonnappa himself, there was partition about 18 years back in the said properties and he was cultivating northern 1/2 portion of the property. 7. Defendant did not dispute claim of plaintiff in respect of plaint schedule item Nos.2 and 4 properties. So far as plaint schedule item Nos.1 and 3 properties, he contended that during the life time of Sonnappa himself, there was partition about 18 years back in the said properties and he was cultivating northern 1/2 portion of the property. He contended that southern 1/2 portion of item No.1 property was allotted to Sonnappa and he was not able to cultivate that and one T.M. Shivanna dispossessed Sonnappa and started to cultivate that. Therefore, T.M. Shivanna perfected his title on the said property. 8. So far as item No.3 property, defendant contended that he ousted his father from the said property on the Sankranthi day of 1993 and since then he was in exclusive possession of the same, hostile to the title of Sonnappa for 18 years. Therefore, he perfected his title to the said property by adverse possession. 9. On the basis of such pleadings, the trial Court framed the following issues: (1) Whether the plaintiff proves that the plaintiff and the defendant are the members of joint family? (2) Whether the plaintiff proves that the suit schedule properties are the ancestral and joint family properties of the plaintiff and the defendant? (3) Whether the defendant No.3 proves that he has perfected his title in respect of item No.3 of the schedule property? (4) Whether the defendant proves that there was already partition in item No.1 of the schedule property? (5) Whether the plaintiff is entitled for the relief claimed? (6) What order or decree? 10. Parties adduced evidence. Plaintiff was examined as PW.1 and got marked Ex.P1 to Ex.P8. Defendant was examined as DW.1 and Ex.D1 to Ex.D12 were marked. 11. The trial Court after hearing the parties, decreed the suit as aforesaid on the following grounds: (i) Admittedly all the suit schedule properties were ancestral joint family properties; & (ii) Defendant failed to prove prior partition set up in respect of item No.1 property, claim of adverse possession in respect of plaint schedule item No.3 property. 12. Aggrieved defendant challenged the said judgment and decree before the First Appellate Court in R.A.No.18/2011 as aforesaid. 12. Aggrieved defendant challenged the said judgment and decree before the First Appellate Court in R.A.No.18/2011 as aforesaid. The First Appellate Court by impugned judgment and decree dismissed the suit in respect of suit schedule item Nos.1 and 3 properties on the following grounds: (i) PW.1 has admitted that defendant was living separately from his father in plaint schedule item No.3 property since 18 years; (ii) Such separate residence for 18 years amounts to adverse possession; & (iii) There is no discussion about item No.1 property at all. 13. This Court admitted this appeal for consideration of the following substantial question of law: "Whether the judgment and decree of the trial Court is perverse in declining to grant the decree for partition with respect to Item 1 and 3 on the plea of adverse possession set up by the defendant against the co-owner?" 14. Sri D.L. Jagadeesh, learned Senior Counsel appearing for Lohitaswa Banakar, Advocate on record for appellant seeks to assail the impugned judgment and decree of the First Appellate Court on the following grounds: (i) When defendant set up case of prior partition and perfection of title by adverse possession, burden of proving those issues were on him; (ii) All along revenue records stood in the name of Sonnappa, even after his death; (iii) There were absolutely no material in proof of prior partition and adverse possession; & (iv) DW.1 himself admitted that he lived with his father cordially and that the First Appellate Court over looked such admission and reversed the well considered judgment of the trial Court without proper appreciation of evidence. 15. In support of his contentions, he relies upon the following judgments: 1. Sri Jayarama Reddy, Since dead by L.Rs. vs. State of Kar., by its Chief Secy., & Ors., (2014) ILR(Kar) 1588. 2. Baswanthrao since deceased by his LRs vs. Rajkumar, (2009) ILR(Kar) 1099. 16. Sri U. Byregowda, learned Counsel for respondent seeks to support the impugned judgment and decree of the First Appellate Court contending that the said Court on sound re-appreciation and evaluation of evidence has rendered the said judgment. 17. There was no dispute with regard to relationship of the parties and nature of the properties being ancestral properties. Only defence of the defendant was with respect of item Nos.1 and 3 of the suit schedule properties. 18. 17. There was no dispute with regard to relationship of the parties and nature of the properties being ancestral properties. Only defence of the defendant was with respect of item Nos.1 and 3 of the suit schedule properties. 18. So far as item No.1 property, it was contended that father effected partition in item No.1 property 18 years back and in that partition, northern 1/2 share was allotted to defendant. He also contended that Sonnappa was dispossessed by one T.N. Shivanna in respect of southern half share and Shivanna perfected his title by adverse possession. 19. To prove alleged partition in respect of item No.1 property, except his self serving testimony defendant did not examine any other witness. All along revenue records of the suit schedule properties stood in the name of Sonnappa, that continued even after his death until filing of the suit. Further, defendant did not chose to examine Shivanna to prove his case of adverse possession. 20. The First Appellate Court did not even discuss the defence of prior partition with respect to item No.1 property and re-appreciate the evidence on that issue and meet the findings of the trial Court on that issue. Without such discussion, the First Appellate Court jumped to the conclusion that prior partition of item No.1 property is proved. In fact said findings of the First Appellate Court is contrary to Order XLI Rule 31 and Section 107 of CPC. 21. So far as item No.3 property, defendant contended that he ousted his father Sonnappa from the said property on the Sankranti day of 1993 and then he continued to stay in the said house, thereby perfected his title by adverse possession. In the written statement, he contended that his relationship with parents were not good. 22. The summary of ratio of the judgment in Sri Jayarama Reddy's case and Baswanthrao's case referred to supra is as follows: 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. 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. 23. Thus it is clear that mere possession of the property by person however long it may be does not become adverse possession unless such possession was open, express or implied repudiation of the rights of the true owners and as such hostility must be within the knowledge of true owner and such knowledge of the true owner has to be proved. 24. Defendant did not specify the date, month and year of his possession becoming adverse to the title of his father. There is no such admission of PW.1 regarding suit schedule item No.3. Though defendant contended that he ousted his father and their relationship was not cordial, in his cross-examination he stated that he was on cordial, terms with his parents till their death. Said evidence goes counter to his defence that he ousted his father and that their relationship was not cordial. 25. The First Appellate Court did not consider such contradictions in the pleadings and evidence of defendant. Mere continued stay of the defendant in item No.3 property does not make his possession adverse possession. There was nothing on record to show that he possessed the property hostile to the title of Sonnappa, to the knowledge of Sonnappa or subsequently to the knowledge of plaintiff. Thus, the findings of the First Appellate Court with regard to item No.3 are contrary to the legal principles and evidence on record regarding adverse possession and suffer perversity. 26. There was nothing on record to show that he possessed the property hostile to the title of Sonnappa, to the knowledge of Sonnappa or subsequently to the knowledge of plaintiff. Thus, the findings of the First Appellate Court with regard to item No.3 are contrary to the legal principles and evidence on record regarding adverse possession and suffer perversity. 26. The Hon'ble Supreme Court in Gurnam Singh v. Lehna Singh, 2019 SCCOnline(SC) 374 [Civil Appeal No.6567/2014 DD 13.03.2019] has held that High Court can substitute its opinion regarding findings of the First Appellate Court, if its finds that First Appellate Court's finding was erroneous being: (i) contrary to the mandatory provisions of the applicable law; or (ii) contrary to the law as propounded by the Apex Court; or (iii) based on inadmissible evidence or no evidence. 27. Under these circumstances, the judgment and decree of the First Appellate Court fits in the ratio laid down by the Hon'ble Supreme Court in Gurnam Singh's case for its reversal. Substantial questions of law are answered accordingly. The appeal is allowed. The impugned judgment and decree of the First Appellate Court dated 26.11.2014 is hereby set aside. The judgment and decree of the trial Court dated 01.02.2011 is hereby restored.