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2022 DIGILAW 205 (KAR)

Subbaraya v. Gurappa Shetty

2022-02-15

M.G.S.KAMAL

body2022
JUDGMENT : 1. The present regular second appeal is filed by the defendant aggrieved by the concurrent findings and conclusions rendered in the judgment and decree dtd. 18/10/2001 passed in O.S.No.258/2002 on the file of the Civil Judge and J.M.F.C, Periyapatna (hereinafter referred to as 'the Trial Court') and the judgment and decree dtd. 14/12/2011 passed in R.A.No.53/2010 on the file of the Additional Senior Civil Judge, Hunsur, sitting at Periyapatna (hereinafter referred to as 'the First Appellate Court'). 2. The parties are referred to as per their original rankings before the trial court. 3. The plaintiff filed the above suit for relief of declaration and permanent injunction in respect of the suit schedule property being land in Sy.No.35/06 measuring 1 acre 35 guntas situated at Thammadahalli village, Bettadapura Hobli, Periyapatna Taluk, on the premise that he had purchased the same under a registered Deed of Sale dtd. 16/10/1974 executed by Sri.Ramaiah, S/o.Krishnaiah for himself and his minor sons, viz., Krishna and Ramachandra and also his sister Smt.Ramamma, daughter of Krishnaiah. That the defendant was also one of the witnesses to the said Deed of Sale. That defendants without having any right, title or possession over the schedule property had filed regular appeal in R.A.No.36/1999-2000 before the Assistant Commissioner, Hunsur, challenging the revenue entries, whereby name of the defendant was entered by deleting the name of the plaintiff. That the plaintiff had also preferred Revision Petition in R.P.No.29/2000-01 before the Deputy Commissioner, who upheld the order of the Assistant Commissioner. Being aggrieved by the said order, Writ Petitions in W.P.Nos.34752-34753/2007 were filed before this Court, wherein this Court by order dtd. 5/3/2002, had directed to file a suit before a Court of competent jurisdiction and seek appropriate remedy with respect to title and possession of the property. That by taking advantage of illegal entries, the defendant was causing interference in the peaceful possession and enjoyment of the plaintiff over the suit schedule property and even denied the title of the plaintiff which constrained the plaintiff to file the suit for declaration and permanent injunction. 4. Defendant filed written statement denying the plaint averments. It was contended that owner of the suit property by name Krishnaiah passed away long back leaving him behind, his wife Kendamma and a son by name Ramaiah and daughter by name Ramamma. The said Kendamma died long back. Their son Ramaiah also died on 06/08/2002. 4. Defendant filed written statement denying the plaint averments. It was contended that owner of the suit property by name Krishnaiah passed away long back leaving him behind, his wife Kendamma and a son by name Ramaiah and daughter by name Ramamma. The said Kendamma died long back. Their son Ramaiah also died on 06/08/2002. Daughter Ramamma who is the mother of the defendant died about 8 years ago. That the defendant and one T.K.Krishna are the only sons of his mother Ramamma. His brother T.K.Krishna also passed away. That Ramamma and her brother Ramaiah had divided their father's property about 60 years back and severed from the joint family. In the said partition, the suit schedule property measuring 1 acre 31 guntas had fallen to the share of his mother- Ramamma. That he and his mother were jointly cultivating the suit schedule property and after demise of his mother, he and his family members came in possession and enjoyment of the entire property. That pursuant to the partition that had taken place, revenue entries were effected in the name of his mother. The plaintiff had obtained the revenue records illegally in respect of the suit schedule property in his favour. That the said illegal entries had been rightly challenged by him before the Assistant Commissioner and had got them cancelled. The said order was confirmed by the Deputy Commissioner in the Revision Petition. That his maternal uncle Ramaiah had no manner of right over the schedule property to convey in favour of the plaintiff. His mother had not at all alienated any bit of land in favour of plaintiff. His mother was not an executant to the registered Deed of Sale. That he has been in continuous possession and enjoyment of the property. The suit is barred by time as the Deed of Sale is of the year 1974. The suit was filed after 28 years. Hence, sought for dismissal of the suit. 5. The Trial Court based on the pleadings framed the following issues and additional issues: (1) Whether the plaintiff proves that the plaintiff is the absolute owner of the schedule property? (2) Whether the plaintiff proves that he was in lawful possession of the suit schedule property as on the date of filing of suit? (3) Whether the alleged interference is true? (4) What order ? (2) Whether the plaintiff proves that he was in lawful possession of the suit schedule property as on the date of filing of suit? (3) Whether the alleged interference is true? (4) What order ? ADDITIONAL ISSUES: (1) Whether the defendant proves that he acquired the title to the suit schedule property by adverse possession? (2) Whether the suit is barred by law of limitation? 6. The plaintiff examined himself as P.W.1 and two additional witnesses have been examined as PWs.2 and 3 and exhibited 13 documents as per Ex.P1 to Ex.P13. On the other hand, the defendant examined himself as DW.1 and exhibited 10 documents as Exs.D1 to D10. 7. On appreciation of evidence, the Trial Court, by its judgment and decree dtd. 18/10/2010 decreed the suit of the plaintiff declaring him to be the absolute owner in possession of the suit schedule property and it was further ordered that the defendant was restrained from interfering over the suit schedule property. 8. Aggrieved by the same, defendant filed regular appeal in R A No.53/2010 before the First Appellate Court. Considering the grounds urged in the appeal memo, the First Appellate Court framed the following points for its consideration. (1) Whether the appellant proves that he has perfected title over the schedule property by way of adverse possession and has become the absolute owner? (2) Whether the respondent proves that he has become the absolute owner of suit schedule property vide sale deed dtd. 16/10/1974 and he is in physical possession? (3) Whether the interference in the impugned judgment by this Court is called for? (4) What order? 9. On re-appreciation of oral and documentary evidence, the first appellate court, by its judgment and decree dtd. 14/12/2011 dismissed the appeal of the defendant and confirmed the judgment and decree passed by the Trial Court. Being aggrieved with the same, the defendant is before this Court in this regular second appeal. 10. Sri Y.D.Harsha, learned counsel for the defendant reiterating the grounds urged in the appeal memorandum submitted; (i) That the courts below have failed to appreciate that the Deed of Sale at Ex.P7 was concocted and created document. That in a suit for declaration the burden is on the plaintiff to establish the title, execution of deeds of conveyance and possession, particularly when the same has been denied by the defendant. That in a suit for declaration the burden is on the plaintiff to establish the title, execution of deeds of conveyance and possession, particularly when the same has been denied by the defendant. In the instant case, the plaintiff had not proved Ex.P7 in a manner known to law. (ii) That the name of Ramamma was found in the revenue records, in that view of the matter, the plaintiff has failed to establish the possession over the property. The endorsements issued by the Tahsildar would prove the name of the plaintiff was not mutated in the revenue records, which would categorically establish the defendant to be the absolute owner of the property. (iii) That the defendant and his mother have been in long uninterrupted/ continuous possession and enjoyment of the suit schedule property for more than statutory period of 12 years. As such, the courts below erred in not appreciating these aspects of the matter which gives rise to substantial question of law requiring consideration. Hence, sought for allowing the appeal. 11. Heard the learned counsel for the defendant. 12. It is not in dispute that the land in Sy.No.35/06 measuring 1 acre 35 guntas of Thammadahalli village, Bettadapura Hobli, Periyapatna Taluk, originally belonged to one Krishnaiah. The said Krishnaiah had a son by name Ramaiah and daughter by name Ramamma. In terms of deed of sale dtd. 16/10/1974, the plaintiff purchased the suit schedule property and has been in possession and enjoyment of the same. The defendant, who is the son of Ramamma, has contended that the said Deed of Sale dtd. 16/10/1974 is a false and created document and no such deed had been executed in favour of the plaintiff. That the defendant being in possession of the property for 60 years and above had perfected the title by way of adverse possession. 13. The defendant, as rightly pointed out by the first appellate court has taken confused and contrary stand in his defence. That the defendant being in possession of the property for 60 years and above had perfected the title by way of adverse possession. 13. The defendant, as rightly pointed out by the first appellate court has taken confused and contrary stand in his defence. While on the one hand, defendant contends that Krishnaiah was the owner of the subject land and after his death his son Ramaiah and daughter Ramamma had equally partitioned the properties in which, the land in Sy.No.35/06 measuring 1 acre 35 guntas had fallen to the share of Ramamma, who is the mother of the defendant and that she had became absolute owner thereof, Ramaiah had no right to convey the said property in favour of the plaintiff in terms of the deed of sale dtd. 16/10/1974 as per Ex.P7. On the other hand, he contends that the said Krishnaiah was in possession of the schedule property and after his death, his mother Ramamma and after her demise the defendant in the capacity of her son succeeded to the property and has been in peaceful possession uninterruptedly over the property for 60 years and has thereby perfected his title by way of adverse possession. 14. Since the defendant is disputing the Deed of Sale dtd. 16/10/1974 as per Ex.P7 to be a fabricated document and he is not accepting the right, title or interest of the plaintiff over the suit schedule property, as such, a plea of adverse possession set up by the defendant having perfected the title adverse to the interest of the plaintiff cannot be considered. 15. Ex.P7 is a registered deed of sale executed on 16/10/1974. It is the plaintiff, who has approached the courts seeking declaration of title based on the aforesaid Deed of Sale. The said Deed of Sale has not been challenged or set aside. In that view of the matter, the claim of the defendant having become owner of the property in the capacity of coparcener and simultaneously claimed to have perfected the title by way of adverse possession cannot be countenanced. The defendant has not proved and established his case of the suit schedule property having fallen to the share of his mother or he having perfected title by adverse possession. The defendant has not proved and established his case of the suit schedule property having fallen to the share of his mother or he having perfected title by adverse possession. The fact that defendant was also a signatory as a witness to the said deed of sale executed by his uncle Ramaiah and his mother Ramamma, would establish the fact of effective conveyance of title in favour of the plaintiff. 16. The trial court and the first appellate court have taken these aspects of the matter and by well reasoned judgments, have decreed the suit of the plaintiff declaring him to be the absolute owner of the suit schedule property in possession and have justifiably granted the decree of permanent injunction. No infirmity or illegality can be found and hence no substantial question of law is involved in this appeal requiring consideration. In the result, the following: ORDER i) Regular Second Appeal No.614/2012 filed by the defendant is dismissed. ii) The judgment and decree dtd. 18/10/2010 passed in OS.No.258/2002 by the trial court and the judgment and decree dtd. 14/12/2011 passed in RA.No.53/2010 by the first appellate are confirmed.