Sri. Thammaiah vs Late Puttaiah
2023 Latest Caselaw 2163 Kant

                             1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 11TH DAY OF APRIL, 2023           R
                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                 R.S.A.NO.580/2017 (DEC)

BETWEEN:

SRI. THAMMAIAH
S/O. VENKATARAMANAPPA
AGED ABOUT 79 YEARS
R/AT JOGIHALLI,
C.N.HALLI TALUK
TUMAKURU DISTRICT-572 214.
                                              ... APPELLANT

           (BY SRI SHANTHA VEERAIAH, ADVOCATE)
AND:

LATE PUTTAIAH
S/O. SEEBAIAH
SINCE DECEASED BY HIS LRS

1.     RAVI
       S/O LATE PUTTAIAH
       AGED ABOUT 69 YEARS

2.     SEEBAIAH
       S/O LATE PUTTAIAH
       AGED ABOUT 55 YEARS

3.     MURTHY
       S/O LATE PUTTAIAH
       AGED ABOUT 44 YEARS
                                2



     ALL ARE RESIDING AT
     DIBBADAHALLI, NEAR BHAVANAHALLI
     KASABA HOBLI, C.N. HALLI TALUK
     TUMAKURU DISTRICT-572 214.
                                                  ... RESPONDENTS

           (BY SMT. SHRUTHI S.P., ADVOCATE FOR
       SRI M.VINAYA KEERTHY, ADVOCATE FOR R1 TO 3)

      THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 16.12.2016
PASSED IN R.A.NO.2/2015 ON THE FILE OF THE SENIOR CIVIL
JUDGE, ITINERATE COURT, C.N.HALLI, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE DATED
11.12.2014 PASSED IN O.S.NO.22/2012 ON THE FILE OF THE
C/C. ADDL. CIVIL JUDGE AND JMFC, C.N.HALLI.

    THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT   ON    28.03.2023 THIS  DAY, THE   COURT
PRONOUNCED THE FOLLOWING:

                       JUDGMENT

This appeal is filed challenging the judgment and decree of

dismissal of suit in O.S.No.22/2012 dated 11.12.2014 and the

judgment and decree of dismissal of appeal in R.A.No.2/2015

dated 16.12.2016 and pray this Court to set aside both the

judgments and allow the appeal and consequently, pass the

judgment and decree in favour of the appellant.

2. The factual matrix of the case of the appellant-

plaintiff before the Trial Court while seeking the relief of

declaration and consequential relief of permanent injunction and

later amended for possession is that the suit schedule property

originally belongs to one Muttu, S/o. Honnegowda and the same

has been purchased by the plaintiff by virtue of registered sale

deed dated 18.12.1972 and he was put in possession of the

property. The plaintiff is the absolute owner thereof and he has

improved the suit schedule property by spending huge money

and has raised coconut garden and paying taxes to the

concerned authority. The defendants having no manner of right,

title or possession over the suit schedule property made an

attempt to interfere with his possession and made an attempt to

dispossess him from the suit schedule property by denying the

title over the suit schedule property. Hence, suit is filed for the

relief of declaration and injunction. It is also the contention of

the plaintiff that, during the pendency of the appeal in

R.A.No.147/2006, the defendants herein taking advantage of the

fact that no injunction was granted, illegally dispossessed the

plaintiff from the suit schedule property and hence, sought for

the relief of possession.

3. In pursuance of the suit summons, the defendants

appeared and filed the written statement denying the averments

made in the plaint. It is contended that the suit property was

originally bearing Sy.No.8 and it belonged to one Muthaiah and

his son Mahadevan and after durasth in the year 1964, it is

renumbered as Sy.No.52 and the said Muthaiah and his son

Mahadevan being the original owner in possession of the suit

property, for their family necessity, sold the property in favour of

defendant No.1 under registered sale deed dated 12.04.1991 for

a valuable consideration of Rs.20,000/- and thereafter, the

defendants are in possession and enjoyment of the same as

absolute owners and improved the property by availing loan

from the bank and constructed a pump-house and farm house

and spent an amount of Rs.4,00,000/- for improvement of the

suit schedule property and have grown 260 coconut trees and

450 areca nut trees and the revenue records are also standing in

the name of the defendants and they have perfected their title

by way of adverse possession.

4. Based on the pleadings of the parties, the Trial Court

has framed the issues and additional issues with regard to

dispossession and also whether the suit is barred by law of

limitation. The plaintiff, in order to prove his case, examined

himself as P.W.1 and also examined two independent witnesses

as P.Ws.2 and 3 and got marked the documents as Exs.P1 to P9.

On the other hand, the defendant No.3 examined himself as

D.W.1 and also examined one independent witness as D.W.2 and

got marked the documents as Exs.D1 to D49.

5. The Trial Court, considering the arguments of the

respective counsel and also on perusal of the material available

on record, answered all the issues, including the additional

issues as 'negative' and dismissed the suit. Hence, an appeal

was filed before the First Appellate Court in R.A.No.2/2015,

wherein the grounds urged by the appellant before the First

Appellate Court is that the Trial Court erred in appreciating the

oral and documentary evidence and particularly, failed to take

note of Ex.P7-Encumbrance Certificate and the loan made in

favour of the plaintiff from the Co-operative society and the

Lower Court has completely ignored the direction issued by the

High Court in W.P.No.13849/2002 which are relating to the

direction to the lower Court in O.S.No.406/1998 not to be

influenced by the entries of the pahanis. The lower Court has

erred in not observing the admission of witness D.W.1 in respect

of title of the plaintiff and his rights over the suit schedule

properties and hence, judgment and decree is liable to be set

aside.

6. Based on the grounds urged in the appeal memo,

the First Appellate Court also framed the points for consideration

whether the Trial Court judgment is not based on evidence, facts

and law, whether the appellant prove that the judgment and

decree passed by the Trial Court is capricious and whether the

judgment and decree of the Trial Court requires interference.

The First Appellate Court also, on re-appreciation of both oral

and documentary evidence placed on record, answered all the

points as 'negative' and dismissed the appeal. Hence, the

present second appeal is filed before this Court.

7. The main grounds urged in the second appeal are

that, both the Courts have committed an error in not giving any

weightage to Ex.P1-sale deed dated 18.12.1972 and given

weightage to the sale deed dated 17.04.1991 in favour of the

defendants. It is contended that, in Ex.P1, it is clearly stated

that, his vendor has acquired the same by grant and there was a

non-alienation clause for a period of 15 years and both the

Courts have not appreciated that the sale transaction has been

reflected in the encumbrance certificate for having purchased the

suit schedule property on 18.12.1972 and without looking into

the same, rendered the judgment which is illegal and capricious

and the finding that the respondents have purchased Sy.No.8/2

and the appellant has purchased Sy.No.8/1 is contrary to the

judgment and decree. Inspite of the Trial Court having come to

the conclusion that during the course of cross-examination of

P.W.2, he admits that suit schedule property belongs to Muttu,

rendered one sided judgment and decree which is illegal and the

Trial Court has failed to observe that the plaintiff has sought

possession of the suit schedule property from the defendants

and the said fact has not been appreciated and rendered one

sided judgment and decree and the Courts below have not given

any weightage to the order passed by this Court in

W.P.No.13849/2002, wherein observation is made that, while

deciding the suit shall so decide uninfluenced by the observation

of the revenue authorities in the present proceedings and inspite

of it, committed an error and prayed this Court to frame

substantial question of law.

8. This Court, while admitting the appeal, framed the

following substantial question of law:

Whether findings of the Courts below that the plaintiff has failed to prove his title over the suit schedule property since his name is not mutated to the revenue records based on the registered sale deed dated 18.12.1972 vide Ex.P1 is perverse, palpably erroneous and contrary to the settled proposition of law that in a comprehensive suit, title of a party has to be adjudicated based on the title documents and not on the basis of the revenue records?

9. Having secured the records from the Trial Court and

in view of framing of substantial question of law, this Court has

heard the arguments of learned counsel for the appellant and

learned counsel for the respondents. The learned counsel for the

appellant would vehemently contend that, it is not in dispute

that land was granted in favour of Muttu on 07.06.1962 and the

same is also not disputed by the defendants. It is the specific

contention of the appellant-plaintiff that he had purchased the

property on 18.12.1972 and after 18 years, one more sale deed

was executed by the same vendor in favour of the defendants on

17.04.1991. The counsel would vehemently contend that both

the Courts committed an error in appreciating both oral and

documentary evidence placed on record and if there is any

violation of non-alienation clause, under Rule 25 of the

Karnataka Land Grant Rules,1969, the concerned authority can

take decision to get back the property and the same has not

been done till this date. The counsel also would submit that the

property was granted in the year 1962 and sale was made in

favour of the plaintiff in the year 1972 and after the plaintiff has

purchased the property in the year 1972, sale deed was

executed in favour of the defendants after 18 years and Section

27 of the Limitation Act extinguishes the right of the original

vendor as well as the competent authority.

10. The counsel, in support of his argument, relied upon

the judgment of this Court in GAVI SIDDE GOWDA VS. STATE

OF KARNATAKA AND ANOTHER reported in 1994 (5)

KAR.L.J. 253, wherein this Court has observed that Rule 25 of

the Karnataka Land Grant Rules, 1969 and Section 27 of the

Limitation Act, 1963 is applicable to the facts of the case. The

grant of land subject to condition of non-alienation of the

granted land for ten years, sale of the land by the grantee in

violation of the condition, transferee in possession for over 12

years, perfection of transferee's title and extinguishment of the

grantee's title, action initiated by Government after 20 years of

the grant to cancel the grant, grant itself becoming non-est, not

available for cancellation, extinguished by operation of law.

11. The counsel would vehemently contend that the facts

of the case on hand is similar. But, in the case on hand, the

competent authority has not taken any action invoking Rule 25

of the Karnataka Land Grand Rules, 1969 and the plaintiff, in

view of the principles laid down in the judgment stands in a

better footing and he has perfected his title, since he has been in

possession for about 18 years after the sale made by the vendor

and the vendor as well as the competent authority have not

taken any action and instead, the vendor had sold the property

and he was not having any title or right to once again sell the

property in favour of the defendants and the said sale deed does

not convey any right in favour of the defendants.

12. The counsel also relied upon the judgment of

Division Bench of this Court in SRI R.A. PRADEEP VS. SRI N.

MURARI AND OTHERS reported in ILR 2021 KAR 1, wherein

this Court has discussed with regard to the revenue entries and

held that, even if by virtue of a mutation entry, the name of a

person is entered in revenue records in respect of an immovable

property, it does not confer any right, title and interest on the

said person. Even if the name of a person appearing in the

revenue record is removed, it does not extinguish the right, title

and interest, if any, vesting in him in respect of the property.

The mutation or revenue entries are made only for fiscal

purposes for deciding the liability to pay land tax or land revenue

and the mutation entries and the revenue entries do not decide

the issue of title in respect of the properties affected by the

entries. The aggrieved party can always establish his title by

approaching the Civil Court.

13. The counsel would vehemently contend that, this

judgment is aptly applicable to the case on hand since, both the

Courts have given more credence to the revenue entries, instead

of title and ignored the document of sale deed as well as the

encumbrance certificate which reflects the sale made in favour of

the plaintiff.

14. The counsel also relied upon the unreported order of

this Court in SMT. SUSHEELAMMA VS. STATE OF

KARNATAKA AND OTHERS passed in W.P.NO.30264 OF

2010 dated 10.03.2020. The counsel referring this order

would vehemently contend that, this Court considered the

judgment of the Apex Court as well as the Division Bench of this

Court which has been relied upon by the learned counsel for the

appellant referred (supra) i.e., GAVI SIDDE GOWDA VS.

STATE OF KARNATAKA AND ANOTHER and so also the

judgment in PUTTAMMA AND OTHERS VS. THE DEPUTY

COMMISSIONER, SHIMOGA DISTRICT AND OTHERS

reported in 2014 (1) KCCR 788 and also taken note of the

judgment in K. GOVINDAPPA VS. STATE OF KARNATAKA,

REVENUE DEPARTMENT AND OTHERS reported in 1999 (5)

KLD 117 and so also the judgment of the Apex Court in

CHHEDI LAL YADAV AND OTHERS VS. HARI KISHORE

YADAV (DEAD) THROUGH LEGAL REPRESENTATIVES AND

OTHERS reported in 2018 (12) SCC 527 and also the

judgment of the Apex Court in JOINT COLLECTOR RANGA

REDDY DISTRICT AND ANOTHER VS. D. NARSING RAO

AND OTHERS reported in (2015) 3 SCC 695 and the judgment

of the Apex Court in SANTOSHKUMAR SHIVGONDA PATIL

AND OTHERS VS. BALASAHEB TUKARAM SHEVALE AND

OTHERS reported in 2009 (9) SCC 352, wherein this Court

comes to the conclusion that, for extinguishment of the right,

not taken any initiative either for cancellation of grant or for

questioning the sale made by the vendor. Hence, these

judgments are applicable to the facts of the case on hand and

prayed this Court to allow the second appeal.

15. Per contra, learned counsel for the respondents

would vehemently contend that the original defendant is the

bonafide purchaser and he had verified the documents which

were in the name of the vendor at the time of purchasing the

property. The counsel also would vehemently contend that the

plaintiff has not proved the possession and possession is with

the original vendor and though the plaintiff contend that, during

the pendency of the appeal, he was dispossessed, the same has

not been proved and no complaint was given and attempt was

made by the defendants for change of entry, immediately after

purchase of the property and though entry was made, the same

was not challenged by the plaintiff. The counsel also would

vehemently contend that, in the document at Ex.P1-sale deed,

there is a recital with regard to payment of Rs.250/- towards the

mortgage and in order to clear the same also, no document is

placed before the Court. Hence, both the Trial Court as well as

the First Appellate Court in detail discussed the same and rightly

comes to the conclusion that the plaintiff is not entitled for the

relief of declaration and even for possession and both the Courts

have given concurrent finding and no perversity in the finding

and hence, the question of invoking Section 100 of C.P.C. does

not arise and prayed this Court to dismiss the second appeal.

16. Having heard the respective counsel and also on

perusal of the material available on record, this Court has to

consider the substantial question of law framed by this Court,

whether findings of the Courts below that the plaintiff has failed

to prove his title over the suit schedule property since his name

is not mutated to the revenue records based on the registered

sale deed dated 18.12.1972 vide Ex.P1 is perverse, palpably

erroneous and contrary to the settled proposition of law that in a

comprehensive suit, title of a party has to be adjudicated based

on the title documents and not on the basis of the revenue

records.

17. Having considered the material on record, it is not in

dispute that the property originally belongs to Muttu and the

same is a granted land. It is also not in dispute that there was a

non-alienation clause for a period of 15 years and within a period

of 15 years, the sale deed was executed in favour of the plaintiff

on 18.12.1972. The plaintiff, in the suit, categorically pleaded

that he had purchased the property on 18.12.1972 and the said

sale deed is marked as Ex.P1 and the defendants claim that they

have purchased the property on 12.04.1991 and also relied upon

the document of Ex.D1 and there is no dispute with regard to

the execution of the sale deed by the vendor of the plaintiff and

the defendants and the original sale deed is in favour of the

plaintiff dated 18.12.1972 in terms of Ex.P1. No doubt, there

was a non-alienation clause, the sale was made before the

expiry of 15 years and no doubt, on perusal of the sale deed,

there was a recital with regard to having received an amount of

Rs.550/- from the plaintiff, an amount of Rs.250/- was left with

the plaintiff to clear the mortgage amount.

18. The main contention of the learned counsel for the

defendants is that, no document is placed before the Trial Court

for having paid the amount of Rs.250/- and the Trial Court also,

discussed the same in the judgment that no document is placed

before the Court for having paid an amount of Rs.250/- in Para

No.19 of the judgment and the very approach of the Trial Court

is erroneous. It is not the case of the mortgagee that he has not

received the amount of Rs.250/- and he had also not approached

the Court and whether the condition of the sale deed is complied

or not is not the subject matter. When such being the

circumstance, the Trial Court ought not to have discussed

regarding payment is concerned and the very approach of the

Trial Court that for having paid the said amount of Rs.250/-, not

produced any document in Para No.24 of the judgment is

erroneous and the same is a perverse finding.

19. It is also important to note that, this Court in

W.P.No.13849/2002 which is also marked as Ex.P5 observed

that the entries in the revenue records will be subject to the

result of the original suit. No doubt, the plaintiff relied upon the

documents of Exs.P2, P3 and P4, not substantiated with regard

to his possession is concerned for the subsequent period and the

Trial Court failed to take note of the averment made in Ex.P1

that on the same day itself, the possession was delivered in

favour of the plaintiff in terms of the sale deed. But, the

defendants mainly relied upon the documents of Exs.D23, D24,

D43 and D44 which shows that the defendants have installed

bore-well and obtained electricity connection and also availed

loan from PLD Bank.

20. It is the case of the plaintiff also that, when the

defendants had purchased the property in the year 1991, they

started to interfere with the possession of the plaintiff and he

also got amended the plaint contending that, during the

pendency of the appeal, he was dispossessed from the property.

It is also important to note that the defendants also claim

adverse possession contending that they are in possession of the

property and the sale was made in favour of the defendants in

the year 1991 and the suit was filed in the year 1998 within a

span of 6 years and the Trial Court also rightly comes to the

conclusion that the defendants failed to prove the factum of

adverse possession.

21. It is also not in dispute that the suits are re-

numbered for want of jurisdiction but, both the Courts failed to

take note of the sale deed executed in favour of the plaintiff in

the year 1972 itself. No doubt, the said sale deed is within the

period of non-alienation clause but, immediately after the period

of non-alienation clause, the plaintiff gets right in respect of the

suit schedule property and this Court also, in the judgment

referred (supra) in GAVI SIDDE GOWDA's case held that the

grantee who held title over the land sold the same in violation of

the non-alienation clause and thereby, the transferee acquired a

voidable title. It is further held that the transferee remained on

the land for an uninterrupted and continuous period of more

than 12 years. Therefore, irrespective of the sale effected

pursuant to a registered sale deed, since the grantee who

acquired title initially, took no steps to dispossess the petitioner

for a period of twelve years, he by virtue of the provisions

contained under Section 27 of the Limitation Act, 1963, lost his

right to the property and thereby, his title in the land

extinguished.

22. In the case on hand also, when he had sold the

property, he kept quite for a period of 18 years and sale was

made in the year 1982 and once again, he has sold the property

in favour of the defendants in the year 1991 after 18 years and

hence, the principles laid down in the judgment referred (supra)

is aptly applicable to the facts of the case on hand and also he

had not approached the authority that sale deed was executed in

violation of the condition and also competent authority not

invoked Rule 25 of the Karnataka Land Grant Rules to take back

the property. Hence, Section 27 of the Limitation Act, 1963 and

Rule 25 of the Karnataka Land Grant Rules are aptly applicable

to the facts of the case on hand since, both the vendor as well as

the competent authority have not invoked Rule 25 and sale was

also not questioned by the vendor and as a result, their right is

extinguished under Section 27 of the Limitation Act, 1963.

23. The very contention of the defendants is that they

had acquired the property by purchasing the same and in one

breath, they plead that they had acquired the property by

purchasing the same and in the alternative, contend that they

have perfected the title by adverse possession. The defendants

cannot blow hot and cold and claim that they had purchased the

property and as a result, they became the owners and on the

other hand, cannot claim that they have perfected the title by

adverse possession contrary to the judgment of the Apex Court

in KESAR BAI vs GENDA LAL AND ANOTHER reported in

(2022) 10 SCC 217 and in view of the principles laid down in

the said judgment, it is very clear that the defendants cannot

blow hot and cold that they had purchased the property through

registered sale deed in one breath and in the alternative that

they had perfected the title by way of adverse possession.

24. It is also important to note that this Court also

framed the substantial question of law that revenue records

cannot confer any title and the Division Bench of this Court also

in the judgment referred (supra) in the case of SRI R.A.

PRADEEP held that, even if by virtue of a mutation entry, the

name of a person is entered in revenue records in respect of an

immovable property, it does not confer any right, title and

interest on the said person. Even if the name of a person

appearing in the revenue record is removed, it does not

extinguish the right, title and interest, if any, vesting in him in

respect of the property. The mutation or revenue entries are

made only for fiscal purposes for deciding the liability to pay land

tax or land revenue.

25. In the case on hand also, the Trial Court as well as

the First Appellate Court given more importance to the revenue

entries and comes to the conclusion that cancellation of the

name of the plaintiff in the revenue records has not been

challenged and the judgment of the Division Bench of this Court

is aptly applicable to the case on hand, even if the name of a

person appearing in the revenue record is removed, it does not

extinguish the right, title and interest, if any, vesting in him in

respect of the property. In the case on hand, the sale deed was

executed in 1972 and in the same year, the property was

transferred in the name of the plaintiff in terms of Exs.P2, P3

and P4 i.e., mutation as well as RTCs but, the same has been

removed subsequently and that removal does not extinguish the

right, title or interest of the plaintiff over the suit schedule

property since, he had acquired the property by purchasing the

same in terms of the sale deed at Ex.P1. The revenue entries do

not decide the issue of title in respect of the property. When

such being the case, this Court has to answer the substantial

question of law in favour of the appellant that both the Courts

failed to consider the document of Ex.P1 i.e., sale deed dated

18.12.1972 and given more importance to the revenue entries

found in the name of the vendor, even after selling the property

and subsequently, on purchase of the property by the

defendants, the revenue entries were transferred in the name of

the defendants and the said finding of both the Courts is

perverse, palpable and erroneous and contrary to the settled

proposition of law that in a comprehensive suit, title of a party

has to be adjudicated based on the title documents and not on

the basis of the revenue records.

26. Admittedly, no dispute with regard to the fact that

the plaintiff had purchased the property in the year 1972 and the

very same vendor had sold the property in favour of the

defendants in the year 1991 and once the vendor had conveyed

right in favour of the plaintiff, even though there was a non-

alienation clause, the same amounts to transfer of only voidable

title and the same is perfected in favour of the transferee on

completion of non-alienation period and the same has not been

questioned either by the competent authority, who granted the

property in favour of the plaintiff and so also the defendants as

well as the vendor did not challenge the very title of the plaintiff

which he had acquired vide sale deed dated 18.12.1972 and in

terms of the sale deed dated 18.12.1972, the title confirms in

favour of the plaintiff.

27. The other contention of the respondents-defendants

is that the plaintiff has not given any complaint for dispossessing

him from the property. The very specific plea of the plaintiff is

that, during the pendency of the appeal only, he had been

dispossessed and the same has been pleaded in Para No.6 of the

plaint and the very contention of the learned counsel for the

respondents that no complaint was given cannot be accepted

and admittedly, the suit was filed in the year 1998 itself seeking

the relief of declaration and consequently for the relief of

permanent injunction claiming that plaintiff has been in

possession of the property and got amended the plaint

subsequently, when the appeal was filed and it is also admitted

that appeal was allowed permitting the plaintiff to amend the

plaint and also given an opportunity to the defendants to file

written statement claiming adverse possession which has been

contended by the defendants and remanded the matter to the

Court and thereafter only, matter was considered before the

Trial Court and both the Courts failed to take note of the

material on record, even the admissions available on record.

28. D.W.1 in the cross-examination categorically

admitted that the plaintiff had purchased the property in the

year 1972 and though admits that the plaintiff is the owner of

the property in the beginning of the cross-examination, he

denied the sale deed dated 18.12.1972. He also admits that,

when he had purchased the property, he was not aware of the

fact that plaintiff had already purchased the property but,

encumbrance certificate is clear and there exists a entry with

regard to the sale transaction which has taken place on

18.12.1972 and the same is also ignored by both the Trial Court

and the First Appellate Court. He also categorically admits that,

originally suit schedule property is self-acquired property of one

Muttu and he had not taken any action against them but, admits

that he came to know about said Muttu suppressed the sale

made earlier and committed fraud after filing of the suit. It is

also important to note that, in the cross-examination, suggestion

was made that, during the pendency of the appeal, they

trespassed the property and took possession from the plaintiff

and the same was denied.

29. The D.W.2, who has been examined in support of the

case of the defendants, categorically admits that said Muttu did

not disclose with regard to having sold the property in favour of

the plaintiff, while selling the property to his father. But, he

claims that, they have verified the khatha, mutation and

encumbrance but, encumbrance clearly discloses that there was

a sale in favour of the plaintiff. It is elicited from the mouth of

D.W.2 that the plaintiff gave the complaint that defendants

assaulted their family members but, witness volunteers to state

that he has given false complaint. Having perused the material

on record, though the learned counsel for the respondents-

defendants contend that no complaint was given by the plaintiff,

however, criminal complaint was given but, the witness claims

that false complaint was given. The very contention of the

defendant that they are the bonafide purchasers cannot be

accepted.

30. Having perused both oral and documentary evidence

placed on record, both the Courts have committed an error and

the finding of both the Courts amounts to perversity. Hence, I

answer substantial question of law framed by this Court as

'affirmative' and consequently, the suit filed by the plaintiff is

liable to be decreed as sought in the plaint, since the material

confers the title in favour of the plaintiff and not in favour of the

defendants.

31. In view of the discussions made above, I pass the

following:

ORDER

(i) The appeal is allowed with cost.

(ii) The judgment and decree passed by the Trial Court in O.S.No.22/2012 dated 11.12.2014

and the judgment and decree passed by the First Appellate Court in R.A.No.2/2015 dated 16.12.2016 are hereby set aside.

Consequently, suit filed by the plaintiff in O.S.No.22/2012 for the relief of declaration to declare him as owner of the property is decreed and he is entitled for possession.

(iii) The defendants are directed to handover possession to the plaintiff within a period of three months from today. If the respondents- defendants fail to deliver possession within a period of three months, the plaintiff is at liberty to take possession in accordance with law.

Sd/-

JUDGE

ST