Karnataka High Court
Smt Kamala vs Shri Harish Shenoy on 1 August, 2024
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RSA No. 463 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO.463 OF 2015 (POS)
BETWEEN:
1. SMT KAMALA
W/O LATE ANNU BHANDARY
AGED 74 YEARS,
OCC: AGRICULTURE
2. SHRI GANESH,
S/O LATE ANNU BHANDARY
AGE 44 YEARS, OCC:AGRICULTURE
3. SHRI DHANANJAYA,
S/O LATE ANNU BHANDARY
AGE 38 YEARS, OCC:AGRICULTURE
4. SMT. JAYANTHI
Digitally signed D/O LATE ANNU BHANDARY
by R DEEPA AGE 54 YEARS, OCC:AGRICULTURE
Location: HIGH
COURT OF 5. SMT. RAJIVI,
KARNATAKA D/O LATE ANNU BHANDARY
AGE 35 YEARS, OCC:AGRICULTURE
6. SHRI VINOD
S/O LATE ANNU BHANDARY
AGE 34 YEARS, OCC:AGRICULTURE
7. SHRI CHANDRASHEKARA
S/O LATE ANNU BHANDARY
AGE 59 YEARS, OCC:AGRICULTURE,
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RSA No. 463 of 2015
ALL ARE RESIDENTS OF
PERLADAKERE, KADABA, PUTTUR TALUK,
D.K. - 574 201
...APPELLANTS
(BY SRI. SAGAR S.S., ADVOCATE FOR
SRI. K V SATEESH CHANDRA, ADVOCATE)
AND:
SHRI HARISH SHENOY
S/O H VENKATESH SHENOY
AGE 48 YEARS, OCC-SERVICE
R/AT SHANKARAPPA BUILDING
ANNASANDRA PALYA,
P.O.HAL BANGALORE - 570 008.
...RESPONDENT
(BY SRI. SATISHCHANDRA N D., ADVOCATE)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 27.11.2014 PASSED IN
RA NO.50/2011 ON THE FILE OF THE V ADDL. DISTRICT AND
SESSIONS JUDGE, D.K., MANGALORE, SITTING AT PUTTUR,
D.K., DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 10.02.2011 PASSED IN OS
NO.2/2000 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE
AND JMFC., PUTTUR, D.K.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI
ORAL JUDGMENT
This regular second appeal is filed by the appellants
challenging the judgment and decree dated 27.11.2014
passed in R.A.No.50/2011 on the file of V Additional
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District and Sessions Judge, sitting at Puttur, D.K,
confirming the judgment and decree dated 10.02.2011
passed in O.S.No.2/2000 on the file of Additional Senior
Civil Judge and JMFC, Puttur, D.K.
2. The parties are referred to as per their ranking
before the trial Court. The appellants are the defendants
and the respondent is the plaintiff. The plaintiff filed a suit
for possession against the defendants in respect of suit 'A'
schedule properties.
3. Brief facts of the case are as under:
It is alleged that Sy.No.129/1A belongs to Appi @
Tarabai measuring 45 cents. Out of that, the plaintiff
purchased 'A' schedule properties measuring 31 cents
under a registered sale deed dated 29.03.1989. The
plotting of the said land was done and it was renumbered
as described in suit schedule 'A' with two survey numbers
and in possession of the said land. Though the order dated
30.10.1984, the Land Tribunal granted 10 guntas of land
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consisting of dwelling house adjacent to the suit properties
to the defendant. The tenancy claim of the defendants in
respect of the whole suit 'A' schedule properties was
rejected and confirmed in the writ petition
No.20450/1989. Since there was interference by the
defendants, the plaintiff filed a suit for injunction in
O.S.No.259/1991, which was dismissed vide judgment
dated 03.11.1994. The plaintiff preferred an appeal in
R.A.No.119/1994. The appeal was allowed and the suit of
the plaintiff in O.S.No.259/1991 came to be decreed and
the same was confirmed in regular second appeal by High
Court vide judgment and decree dated 21.11.1997. It is
contended that, the plaintiff is employed in Bangalore and
able to supervise the properties. During the month of
August, 1999, the plaintiff had gone through the suit
properties and it was learnt that the defendants destroy
the fencing around the 'A' schedule properties and
prevented the plaintiff from entering the land and
dispossess the plaintiff from the suit schedule properties.
Hence, the plaintiff requested the defendants to deliver
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the possession of the suit schedule properties, but the
defendants refused to deliver the possession of the suit
schedule properties. Hence, cause of action arose for the
plaintiff to file a suit for possession.
4. Defendants filed the written statement denying
the ownership of the plaintiff over the suit schedule
properties. It is contended that, the defendants were in
possession of the entire extent of land in suit survey
number i.e., 45 cents through the Land Tribunal order and
the Land Tribunal granted occupancy rights to the extent
of 10 guntas, however, the defendants are in possession
of 45 cents. It is contended that the vendor of the plaintiff
is not the owner of the suit schedule properties and by
taking undue advantage of the same colluding with village
accountant, the plaintiff got created the revenue records
and fraudulent sale deed. Further, it is contended that, the
sale deed is in contravention of the Land Reforms Act and
the suit is not maintainable without seeking a relief of
declaration. Hence, prayed to dismiss the suit.
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5. The trial Court, on the basis of the pleadings of
the parties, framed the issues and additional issues.
6. The plaintiff in order to substantiate his case,
examined himself as PW.1 and got marked 13 documents
as Exs.P1 to P13. On the other hand, father of the
defendants was examined as DW.1 and examined one
witness as DW2 and got marked 05 documents as Exs.D1
to D5. The trial Court after recording the evidence of the
parties, hearing both sides and on assessment of oral and
documentary evidence, answered issue Nos.1 and 6 in the
affirmative, issue Nos.2 to 5, 7 and additional issue Nos.1
to 4 in the negative, additional issue No.5 not survive for
consideration, additional issue Nos.6 and 7 is
unsustainable and issue No.8 as per final order. The suit of
the plaintiff was decreed with cost and it had directed the
defendants to deliver the vacant possession of the suit
schedule properties to the plaintiff within three months
from the date of judgment. Failure to the same, the
defendants are liable to pay future mesne profits after
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lapse of such stipulated period. The defendants aggrieved
by the judgment and decree passed by the trial Court
preferred an appeal in R.A.No.50/2011.
7. The First Appellate Court, after hearing the
parties, framed the points for consideration.
8. The First Appellate Court, after re-appreciating
the oral and documentary evidence, answered point Nos.1
to 3 in the negative and point No.4 as per final order. The
appeal was dismissed vide judgment dated 27.11.2014.
9. The defendants aggrieved by the impugned
judgments, have filed this regular second appeal.
10. Heard the learned counsel for the defendants.
11. Learned counsel for the defendants submits
that the defendants are in possession of 45 cents. The
Land Tribunal granted occupancy rights to the extent of 10
guntas. However, the defendants are continued in
possession of the suit schedule properties. He also submits
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that the defendants acquired the title by way of adverse
possession. Hence, the said aspect was not considered by
the courts below. He submits that the suit filed by the
plaintiff is barred by limitation. Hence, on these grounds,
he prays to allow appeal.
12. Learned counsel for the plaintiff submits that
the plaintiff has already taken the possession of the
property in the execution petition in E.P.No.26/2015. The
said fact is not disputed by the learned counsel for the
defendants.
13. Perused the records and considered the
submissions of the learned counsel for the defendants.
14. It is not in dispute that the Appi @ Tarabai was
the absolute owner of the suit schedule properties. The
defendants have submitted the Form No.7 before the Land
Tribunal for grant of occupancy rights. The Land Tribunal,
after due inquiry, allowed Form No.7 in part holding that
the defendants are in possession to the extent of 10 cents
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and declined to grant occupancy rights in respect of 35
cents in suit survey number. The defendants aggrieved by
the order passed by the Land Tribunal preferred the writ
petition in W.P.No.20450/1989. Before that, the owner of
the suit land had sold the suit schedule properties in
favour of the plaintiff under a registered sale deed marked
as Ex.P8. The defendants have made the plaintiff a party
in the said writ petition. This Court, while dismissing the
writ petition, has recorded a finding, which reads as
follows:
"Further, I have perused the deposition of
K.Anni Bhandari as also the letter to the
Secretary, Secretary, Bhoonyaya Mandali, by
respondent No.3. If both these are read
together, it is also difficult to say that the
conclusion arrived at by the Tribunal on merits
is wrong. Looked at from any point of view, I do
not find any force in the contention of the
petitioner. However, it is not necessary for me
to go into the merits of the case since I have
come to the conclusion that the writ petition is
liable to be dismissed on the ground of laches
alone."
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15. This Court has passed an order on I.A.No.1,
wherein it has recorded a finding and it is submitted by
both sides that in an area of 45 cents, the petitioner
(present defendant) is in possession and enjoyment of the
plaint 10 cents, wherein his house is situated. The dispute
is in regard to remaining 35 cents, which according to both
parties is a vacant land.
16. Admittedly, the Land Tribunal refused to grant
occupancy rights in respect of 35 cents in the said survey
number. Admittedly, the plaintiff had purchased the suit
schedule properties under Ex.P8. Further, it is the case of
the plaintiff that, in the year 1999, the defendants have
dispossess the plaintiff from the suit schedule properties.
The plaintiff in the year 2000 filed a suit for possession.
The courts below, considering Ex.P8, have rightly held that
the plaintiff is the absolute owner of the suit schedule
properties and the defendants are trespassing into the suit
schedule properties.
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17. It is the case of the defendants that the
defendants are in possession of the suit schedule
properties since from the year 1971 as an owners without
any interaction, obstruction and hindrance. Hence, the
defendants have acquired a title by way of adverse
possession. In order to prove the adverse possession and
plea of adverse possession, first the defendants have to
admit the title of the plaintiff. Admittedly, in the instant
case, the defendants have not admitted the title of the
plaintiff over the suit schedule properties. Further, the
defendants have not taken plea of adverse possession in
the writ petition filed by them in W.P.No.20450/1989. On
the contrary, the defendants took the defence that they
are in possession of the suit schedule properties as tenant
and not as the owners. Hence, the trial Court was justified
in discarding the defence of the defendants on the plea of
adverse possession. Further, admittedly, any suit for
possession, based on the title, has a limitation prescribed
under Section 65 of the Limitation Act that is 12 years.
When the possession of the defendants becomes adverse
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to the plaintiff, admittedly, the plaintiff has contended that
the defendants have dispossess the plaintiff in the year
1999 and the plaintiff filed the suit in the year 2000.
Hence, the suit filed by the plaintiff is within limitation and
further, the question of limitation is a mixed question of
law and facts and it is not a substantial question of law.
The first Appellate Court on reappreciation of evidence on
record was justified in dismissing the appeal. I do not find
any error in the impugned judgments and any substantial
question of law that arises for consideration in this
appeal.
18. In view of the aforesaid facts and circumstances,
I proceed to pass the following:
ORDER
The appeal is dismissed
The judgments and decree passed by the
Courts below are hereby confirmed.
No order as to the costs.
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In view of dismissal of the appeal, I.A.No.1/2015
does not survive for consideration.
Sd/-
(ASHOK S.KINAGI)
JUDGE
SSB
