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2019 DIGILAW 514 (KAR)

Ishwar v. Kallappa

2019-02-26

S.G.PANDIT

body2019
JUDGMENT : S.G. PANDIT, J. 1. This appeal is by the defendant-appellant under Section 100 of Code of Civil Procedure assailing the judgment and decree dated 30.04.2016 in O.S.No.161/2014 passed by the III Addl. Senior Civil Judge, Vijayapura and the judgment and decree dated 22.09.2018 in R.A.No.84/2016 passed by the Principal District Judge, Vijayapura by which judgment and decree the suit in O.S.No.161/2014 is confirmed. 2. The appellant herein is the defendant and the respondent is the plaintiff before the Trial Court. The parties to the appeal would be referred to as per the rank of the parties before the Trial Court. 3. The matter is listed for admission. Heard both counsel for admission of the appeal, reserved and disposed of by this judgment. 4. The plaintiff filed the suit for declaration of title over the suit land bearing RS No.28/1A, measuring 6 acres 6 guntas siutated at Arjunagi village, Babaleshwar Hobali, Vijayapura Taluk (hereinafter referred to as 'suit land') and consequential relief of perpetual injunction and in the alternative for the relief of possession of the suit land. Plaintiff's case in nutshell: 5. The plaintiff and defendant are brothers. The defendant has gone in adoption to one Sri. Ramappa on 15.05.1983. The plaintiff claims that he is the owner in lawful possession of the suit land having purchased under sale deed dated 27.01.1994 for valuable consideration of Rs.42,000/- from its previous owner. On purchase of the suit land, his name was mutated in the revenue records. As the plaintiff was a petty businessman and required to travel very often, he found it difficult to cultivate the suit land and in the month of April-2004, as per the request of the defendant, the plaintiff handed over the possession of the land to the defendant on crop sharing basis. On the said basis of crop sharing, the defendant came in permissive possession of the suit land. It is the further case of the plaintiff that for raising the loan the defendant had obtained signature of the plaintiff on blank papers and other forms and the defendant had misutilized the same for mutating his name in the revenue records pertaining to the suit land. The defendant had created a false M.R. entry in the year 2004-05 on the strength of partition deed alleged to have been executed by the plaintiff in respect of the suit land. The defendant had created a false M.R. entry in the year 2004-05 on the strength of partition deed alleged to have been executed by the plaintiff in respect of the suit land. It is the further case of the plaintiff that defendant has no right to claim the suit land and he cannot acquire any right, title and interest over the suit land. Defendant's case in brief: 6. On issuance of suit summons, the defendant appeared before the Court and filed his written statement and denied the plaint averments. It is contended that when the relief of permanent injunction is sought the relief of possession could not have been sought. Further, the defendant contended that he and plaintiff constitute a joint family and both were doing coolie work by taking the lands of others on crop sharing basis. The suit land was purchased jointly by the plaintiff and defendant in the year 1994 in the name of plaintiff, as he was elder member of the family. Even though the land was in the name of plaintiff, the defendant continued to be in joint cultivation and enjoyment of the suit land along with plaintiff. Due to the differences, subsequently the partition took place by memorandum of partition dated 06.04.2004. Based on the said partition, the name of the defendant was entered in the mutation and since then the defendant is in possession and enjoyment of the suit land. 7. Based on the pleadings of the parties, the trial Court framed the following issues; ISSUES 1. Whether the plaintiff proves that, the suit property is his self-acquired property? 2. Whether the plaintiff further proves that, the defendant in collusion with the village accountant got created M.R.No.29/2004-2005? 3. Whether the plaintiff further proves that, Defendant has given in adoption on 15.05.1983 to one Ramappa S/o Parasappa Ligadi in view of this, the Defendant has not pre-existing right in the suit land? 4. Whether the Defendant proves that, the suit property is fallen to his share in the partition between Plaintiff and himself? 5. Whether the suit of the Plaintiff is barred by law of limitation? 6. Whether the court fee paid is insufficient? 7. Whether the Plaintiff is entitled to the relief as sought for? 8. What order or decree? 8. The plaintiff got examined himself as P.W.1 and got marked Exs.P.1 to 3 documents in his evidence. 5. Whether the suit of the Plaintiff is barred by law of limitation? 6. Whether the court fee paid is insufficient? 7. Whether the Plaintiff is entitled to the relief as sought for? 8. What order or decree? 8. The plaintiff got examined himself as P.W.1 and got marked Exs.P.1 to 3 documents in his evidence. Defendant got examined himself as D.W.1 and examined two witnesses as D.Ws.2 and 3 and got marked Exs.D.1 to 11 documents in support of his contention. 9. The trial Court on appreciation of the evidence on record both oral and documentary, held issue Nos.1, 2 and 7 in the Affirmative and issue Nos.4 to 6 in the Negative. Thus, the trial Court decreed the suit and directed the defendant to hand over the possession of the suit land to the plaintiff within one month from the date of the judgment. 10. The defendant being aggrieved by the judgment and decree passed in O.S.No.161/2014 filed regular appeal in R.A.No.84/2016 under Section 96 R/w Order XLI Rule 1 of the Code of Civil Procedure before the Principal District Judge, Vijayapura contending that the judgment and decree passed by the trial Court is opposed to material both oral and documentary evidence on record. Further, it is the case of the defendant that the trial Court had failed to appreciate the evidence and documents produced by the him. The defendant contended that the findings of the trial Court is on surmises and conjectures and trial Court failed to appreciate the decision relied upon by the defendant. 11. The first Appellate Court by its detailed judgment and decree and on proper analyses dismissed the appeal, confirming the judgment and decree passed by the trial Court in O.S.No.161/2014 dated 30.04.2016. The defendant being aggrieved by the concurrent findings of the Courts below is before this Court in this appeal under Section 100 of the Code of Civil Procedure. 12. The learned counsel for the defendant/appellant contended that the suit is barred by limitation as the plaintiff was aware of his possession in the year 2004 itself, whereas the suit is filed in the year 2014. He further contended that both the Courts below have failed to examine and appreciate the contention of the defendant with regard to issue of limitation. He further contended that both the Courts below have failed to examine and appreciate the contention of the defendant with regard to issue of limitation. The learned counsel for the defendant further submits that the defendant has produced Ex.D.6-M.R.No.29/2004-05 which shows that the entries were changed to the name of the defendant in the year 2004-05 itself, which was within the knowledge of the plaintiff and the plaintiff having kept quite almost ten years, thereafter he has filed the suit in the year 2014, which is beyond the period of limitation as prescribed under Article 58 of the Limitation Act. It is further contended that plaintiff and defendant had partitioned the suit property under Ex.D.1-Vatani Patra and Ex.D-2-Varadi, which contain the signature of the plaintiff and on the basis of which the mutation entry has been changed. Therefore, it is his submission that the suit is barred by time. 13. On the other hand, the learned counsel for the respondent-plaintiff submits that the suit filed is within time as the suit is for declaration based on title as such the limitation period for seeking the relief of declaration based on title is 12 years and assuming that the plaintiff had the knowledge in the year 2004 with regard to the possession of the defendant the suit filed is within 12 years. Further, learned counsel submits that in the cross-examination, D.W.1 himself has admitted that the entries came to the knowledge of the plaintiff only in the year 2014. 14. Issue No.5 is with regard to limitation and burden is on the defendant to prove that the suit filed by the plaintiff is bared by time. It is the case of the plaintiff that on crop sharing basis the suit schedule property is handed over to the defendant and defendant is in permissive possession of the suit schedule property. It is an admitted fact that the defendant has gone in adoption to one Sri. Ramappa through a registered adoption deed dated 15.05.1983. From the said date the defendant is no longer a family member of the plaintiff. 15. The contention of the defendant is that Ex.D1-Memorandum of partition is between the plaintiff and defendant and on the basis of the said memorandum of partition, mutation has been entered in his name in the year 2004. From the said date the defendant is no longer a family member of the plaintiff. 15. The contention of the defendant is that Ex.D1-Memorandum of partition is between the plaintiff and defendant and on the basis of the said memorandum of partition, mutation has been entered in his name in the year 2004. From the said date he is in possession and which was well within the knowledge of the plaintiff. Therefore, it is his contention that plaintiff ought to have filed the suit within three years from the said knowledge of his possession. But, the suit of the plaintiff is for declaration of title. It is an admitted fact that the plaintiff is the owner of the suit land. But, the defendant had no pre-existing right to claim partition in the suit schedule land. 16. It is the definite case of the plaintiff that the suit land is with the defendant on crop sharing basis and defendant is in permissive possession. Only in the year 2014 it came to the knowledge of the plaintiff with regard to the entry of defendant's name in the mutation. The defendant has failed to rebut the said statement and the evidence of the plaintiff. With regard to the limitation the burden is on the defendant. The P.W.1 in his evidence has specifically stated that entering the name of defendant was not within his knowledge till the year 2014 and to that aspect the defendant has failed to elicit anything in his cross-examination. On the other hand, D.W.1 in his cross-examination has admitted that the change of name in the record of rights has came to the knowledge of the plaintiff only in the year 2014. Further, it is to be seen that since the suit of the plaintiff is for declaration of title and for injunction, as such Article 65 of the Limitation Act would be applicable, wherein the limitation prescribed is 12 years. Assuming that the plaintiff had knowledge in the year 2004 he had time till the year 2016 to file the suit, whereas the suit is filed in the year 2014 which is well within the time. 17. The learned counsel for the appellant-defendant submitted that the stray sentence of admission cannot be taken as admission and evidence as a whole has to be read. 17. The learned counsel for the appellant-defendant submitted that the stray sentence of admission cannot be taken as admission and evidence as a whole has to be read. In this regard, learned counsel for the appellant relied upon the unreported decision of RSA No.2798/2010 decided on 13.03.2013. D.W.1 in his cross-examination has stated as follows; XXX XXX XX 18. The burden to prove the issue with regard to the limitation is on the defendant. The defendant has not led any cogent evidence in respect of the defence of limitation. The defendant has also failed to elicit anything from plaintiff in his cross-examination. The plaintiff has specifically contended that the cause of action to file the suit had arisen only on 01.07.2014 on which day the defendant for the first time began to assert his title over the suit land by denying exclusive title of the plaintiff over the suit land. It is the case of the defendant that the mutation and revenue record shows his name from the year 2004 and the plaintiff was aware of the same. Mere, existence of an adverse entry in the revenue records would not give rise cause of action. But, only when the rights asserted is infringed or there is threat to infringe the right, the cause of action arises. In the case on hand, the plaintiff has categorically stated that cause of action arose only in the year 2014. To rebut the same, the defendant has not led any cogent evidence. In the absence of any evidence in support of the defence of limitation by the defendant the trial Court has rightly held the issue No.5 which is with regard to limitation negatively. 19. The first Appellate Court has also dealt with the issue of limitation and has rightly held at paragraph No.30, which reads as follows: "30. Therefore, it is clear that the threat of the right of the plaintiff is on 1.7.2014 which is stated by him and is not on the date of mutation entry. It is stated that he came to know the entry in the year 2014 only when the defendant asserted his title over the suit property. Therefore, it is clear that the threat of the right of the plaintiff is on 1.7.2014 which is stated by him and is not on the date of mutation entry. It is stated that he came to know the entry in the year 2014 only when the defendant asserted his title over the suit property. Therefore, the suit is filed within time in view of the fact that adverse entry in favour of the defendant in the record of rights does not amount to deny title in the absence of right of adverse possession, claimed by the defendant. Therefore, the contention raised by the appellant that the suit is barred by limitation is also not sustainable under law." 20. While coming to the above conclusion the trial Court has also relied upon the decisions of this Court and has rightly concluded that the suit is not barred by limitation. 21. The defendant contended that he got the suit land through memorandum of partition as per Ex.D.1. He also further submitted that as per Ex.D.2-Varadi was given to the revenue authorities, which is signed by both the plaintiff and defendant and on that basis the revenue entries were changed. Further, he submits that in pursuance to that the defendant is in possession of the suit schedule land. It is to be noted here that the suit schedule land stood in the name of plaintiff having been purchased by him under registered sale deed dated 27.01.1994, certified copy of which is produced at Ex.P.1. It is the contention of the defendant that the said land was purchased in the name of plaintiff since he being the elder member of the family and while purchasing the defendant has contributed towards the sale consideration. It is to be noted that it is an admitted fact that the defendant has gone in adoption to one Sri. Ramappa under registered adoption deed dated 15.05.1983. There is no dispute with regard to the adoption. As on the date of purchase of suit land by the plaintiff, the defendant was not a family member of the plaintiff and there was no occasion for the defendant to contribute towards the purchase of the suit land. Ramappa under registered adoption deed dated 15.05.1983. There is no dispute with regard to the adoption. As on the date of purchase of suit land by the plaintiff, the defendant was not a family member of the plaintiff and there was no occasion for the defendant to contribute towards the purchase of the suit land. Further, to seek partition under Ex.D1, the defendant has no pre-existing right over the suit land because he is not a member of the joint family or a co-parcener as on the date of alleged Ex.D.1. Moreover, Ex.D.1 which is styled as partition but same is an unregistered deed. Any transfer by any instrument requires registration. Based on the unregistered document, no right could be claimed by the defendant. The defendant has stated that earlier he has gone in adoption in the year 1983 itself. When such being the case the defendant cannot claim any right or seek for partition of the suit schedule land. Moreover, suit land is purchased by the plaintiff in the year 1994 and the defendant has not produced any evidence to show that the suit schedule land is purchased out of the nucleus of joint family property. Further, to say that the property is purchased out of the joint family nucleus as on the date of purchase the defendant was not a member of the joint family as having been gone in adoption in the year 1983 itself. Further, the counsel for the defendant contended that natural father of the plaintiff and adoptive father of the defendant who are brothers had not partitioned. Hence, he has a right in the suit schedule land. The said contention is also not available for the defendant since the suit land is purchased by the plaintiff and it is self acquired property of the plaintiff under Ex.P-1, certified copy of sale deed in the year 1994. Hence, viewed from any angle, the defendant has not made out any case to interfere with the impugned judgment and decree of the courts below. Further, the Courts below have concurrently held against the defendant. 22. Under Section 100 of Code of Civil Procedure, the second appeal could be entertained only if it involves substantial question of law. In the case on hand, under the facts and circumstances of the case, no substantial question of law involves. Accordingly, the appeal is dismissed. Further, the Courts below have concurrently held against the defendant. 22. Under Section 100 of Code of Civil Procedure, the second appeal could be entertained only if it involves substantial question of law. In the case on hand, under the facts and circumstances of the case, no substantial question of law involves. Accordingly, the appeal is dismissed. In view of disposal of appeal, I.A.No.1/2018 does not survive for consideration. Accordingly, same is disposed of.