Dismissed

Sri Anjinappa v. Smt Babun Bi

Karnataka HC25 Aug 2021RSA/3495/2006

Case brief

AI extract

What is this about?

This Regular Second Appeal challenged a judgment decreeing recovery of possession. The High Court dismissed the appeal, upholding the trial court's finding that the defendant encroached on the plaintiffs' land. The Court clarified that while the defendant should be allowed a separate suit for title, the suit for possession was maintainable and correctly decided.

What did the court decide?

Appeal dismissed; Defendant directed to vacate encroached land (no new orders in this appeal).

Sri Anjinappa Vs Smt Babun Bi — Property and Title | Karnataka HC (2021)

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THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 25^TH DAY OF AUGUST 2021

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BEFORE

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THE HON’BLE MR. JUSTICE E.S.INDIRESH

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R.S.A. No.3495/2006 (RES)

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BETWEEN:

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SRI.ANJINAPPA S/O PILLANNA

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SINCE DEAD BY HIS LRS:-

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SMT.NARAYANAMMA W/O LATE ANJANAPPA AGED ABOUT 75 YEARS

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SRI.P.A.NARASA REDDY S/O LATE ANJANAPPA AGED ABOUT 55 YEARS

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SRI.P.A.NAGARAJ S/O LATE ANJANAPPA AGED ABOUT 44 YEARS

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SRI.P.A.PILLAPPA S/O LATE ANJANAPPA AGED ABOUT 35 YEARS

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SMT.KONDAMMA D/O LATE ANJANAPPA W/O KRISHNAPPA AGED ABOUT 50 YEARS

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SMT.KANTHAMMA D/O LATE ANJANAPPA W/O CHANDRAPPA AGED ABOUT 40 YEARS

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SMT.LAKSHMINARASAMMA

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D/O LATE ANJANAPPA W/O NAGAIAH AGED ABOUT 36 YEARS ALL ARE RESIDING AT PERESANDRA, CHICKABALLAPURA TALUK KOLAR DISTRICT – 562 101 ... APPELLANTS

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(BY SRI.K.N.NITISH, ADVOCATE A/W SRI.K.V.NARASIMHAN, ADVOCATE) AND:

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SMT.BABUN BI W/O SRI.BABU SAB MAJOR SINCE DECEASED BY LRS R2 TO R7

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SRI.BABU SAB S/O SRI.BABU SAB MAJOR

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SMT.G.B.BASHA SAB S/O SRI.BABU SAB MAJOR

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SRI.ANWAR SAB S/O SRI.BABU SAB MAJOR

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SRI.SUBHAN SAB S/O. SRI.BABU SAB MAJOR

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SRI.B.R.SHAFIULLA S/O RASOOL SAB MAJOR

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SMT.FAKRUBI W/O NABI SAB MAJOR

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ALL ARE RESIDING AT PERESANDRA, CHICKABALLAPURA TALUK KOLAR DISTRICT – 562 101

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... RESPONDENTS

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(BY SRI.VISHWANATH R HEGDE, ADV. FOR R2 TO R7; R2 TO R7 ARE LRs OF DECEASED R1))

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THIS R.S.A. IS FILED U/S.100 OF CPC AGAINST THE JUDGMENT & DECREE DATED 18.10.2006 PASSED IN R.A.NO.226/2002 ON THE FILE OF THE PRESIDING OFFICER AND ADDL. SENIOR JUDGE, FAST TRACK COURTV, CHICKBALLAPUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DATED 02.11.2002 PASSED IN OS NO.76/1998 (OLD NO.258/1990) ON THE FILE OF THE CIVIL JUDGE (JR.DVN.) & JMFC, GUDIBANDA.

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THIS R.S.A. COMING ON FOR HEARING THIS DAY, THE COURT, DELIVERED THE FOLLOWING:

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JUDGMENT

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This Regular Second Appeal is filed by legal representatives of the defendant challenging the judgment and decree dated 18.10.2006 passed in RA.No.226/2002 on the file of the Fast Track Court-V Chikkaballapura confirming the judgment and decree dated 02.11.2002 passed in OS.No.76/1998 (O.S.No.258/1990) on the file of the Civil Judge (Jr.Dn) & JMFC, Gudibanda decreeing the suit of the plaintiffs.

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For the sake of convenience, the parties in this appeal shall be referred to in terms of their status and ranking before the trial Court.

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The plaint averments are that the plaintiffs claim to be the children of one Babu Sab. They have filed a suit in O.S.No.258/1990, seeking relief of directing the defendant to quit and deliver vacant possession of the plaint schedule properties and also sought for mesne profits. It is further averred in the plaint that the said Babu Sab was a resident of Peresandra and the lands bearing Sy.Nos.94/2, 94/3 and 94/4 of Peresandra village belonged to deceased Babusab. The said Babusab had purchased the property from Reddy Avulappa. It is the case of the plaintiffs that the defendant is the owner of the adjacent land and the plaintiffs have surveyed the land belonging to them and came to know that certain extent of their land had been encroached by the defendant and as such it is the case of the plaintiffs

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that they have issued notice dated 18.06.1990 to the

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defendant to vacate the encroached portion of the land. However, the defendant sent a evasive reply. Being aggrieved by the same, the plaintiffs registered the suit in O.S.No.258/1990 before the trial Court. Thereafter, the said suit was renumbered it as O.S.No.76/1998.

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After service of notice, the defendant entered appearance and filed written statement contending that item No.1 of suit schedule property is the ancestral property of the defendant and defendant is in exclusive possession and enjoyment of the same.

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The defendant also took up a contention that the suit is barred by the limitation and the plaintiffs have suppressed the true facts before the Court by stating that the suit schedule properties are the properties of the said Babusab. It is further averred in the written statement that the defendant has been cultivating suit item No.1 and other lands with the help of the well

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situated in item No.1 of the suit property and plaintiffs are owning some extent of the property adjacent to the suit properties and as such, it is the defence of the defendant that he has never encroached any portion in item Nos.2 and 3 and therefore, it is contended by the defendant that the suit is not maintainable insofar as item Nos.2 and 3 are concerned. However, insofar as item No.1 is concerned, the defendant has averred that he has perfected his title by adverse possession. Accordingly, the defendant sought for dismissal of the suit.

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On the basis of the rival pleadings, the trial Court has formulated following issues for its

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consideration:

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“i) Whether the plaintiff prove their relationship with deceased Babusab ?

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ii) Whether they prove that lands bearing Sy.Nos.94/2, 94/3 and 94/4 belonged to Babusab ?

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iii) Whether they prove that the defendant has made encroachments in their lands ?

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iv) Whether the defendant prove that the suit properties are his ancestral properties and at a partition between him and his brother they have follow to his share ?

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v) Is the suit bad for non-joinder of defendant’s brother ?

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vi) Is the suit barred by time ? vii) Is the Court fee paid not sufficient ?

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viii) Are the plaintiffs entitle to the relief prayed for ?

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ix) What decree or order ?”

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In order to establish their case, plaintiffs

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have examined two witnesses as PWs.1 and 2 and produced 30 documents and the same were marked as Exs.P1 to P30. On the other hand, defendants have examined 5 witnesses as DWs.1 to 5 and produced 11 documents and the same were marked as Exs.D1 to D.11.

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The trial Court, after considering the

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material on record, by its judgment and decree dated 02.11.2002 decreed the suit, directing the defendant to quit and deliver vacant possession of the properties

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to the plaintiffs within three months from the date of the decree.

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Being aggrieved by the judgment and

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decree passed by the trial Court, the defendant preferred R.A.No.226/2002 on the file of the Fast Track Court-V and the said appeal was resisted by the plaintiffs. The First Appellate Court after reappreciating the material on record, by its judgment and Decree dated 18.10.2006 dismissed the appeal, consequently confirmed the Judgment and decree passed by the trial Court.

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Being aggrieved by the Judgment and Decree passed by the Courts below, the legal representatives of the defendant have preferred this Regular Second Appeal under Section 100 of CPC.

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I have heard Sri. K.N.Nitish, learned counsel for the appellants and Sri Vishwanath R.Hegde, learned counsel appearing for the respondents.

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Sri K.N.Nitish, learned counsel for the defendant/appellants contended that both the Courts below have not considered the material on record, particularly the pleadings wherein the defendant had taken up the contention that the defendant is the owner of the suit item No.1 which was being inherited by him from his ancestors and he is in exclusive possession and enjoyment of the same. He further contended that the defendant raised the plea of limitation at paragraph 5 of the written statement and the trial Court has not properly appreciated the said question of law and fact with cogent reasons and therefore, he contended that the same has not been re-appreciated by the First Appellate Court as reqired under law. He further contended that the impugned judgment and decree passed by the trial Court requires interference. He further contended that in view of paragraph No.7A of the written statement, the defendant never encroached any portion of item Nos. 2 and 3 of the suit properties and as such, no relief could

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have been ordered by the trial Court. Insofar as item No.1, he further contended that the defendant has perfected his title by adverse possession and the said aspect has not been appreciated by the trial Court while answering issue No.4. He also contended that there is a cloud in the title of the plaintiffs and the same has not been answered by the Courts below.

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He placed reliance on the law declared by the Apex Court in Ananthula Sudhakar vs. P.Buchi Reddy (Dead) by LRs and others reported in (2008)4 SCC 594 and the judgment of this Court in RSA No.1963 of 2005 decided on 24.04.2019 to buttress his contention that the mere relief sought for by the plaintiffs are not maintainable and the plaintiffs ought to have converted the suit claiming relief of possession into a suit for declaration. In this regard, he submitted that both the Courts below have not properly appreciated the oral and documentary evidence in the right perspective and the finding

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recorded by both the courts below require to be set aside. He further contended that taking into consideration the pleadings in written statement that the father of the plaintiff BabuSab has no title insofar as suit schedule property is concerned, there is no finding recorded by both the Courts.

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Sri Vishwanath R.Hegde, learned counsel for the respondents submits that both the Courts below on facts held against the defendant and therefore, no interference is called for insofar as the factual aspects of the case. He further contended that DW-1 himself admitted in the cross-examination that he has encroached the portion of the land belonging to the plaintiffs and therefore, the finding recorded by the Courts below are based on the evidentiary value and the same cannot be disturbed in this appeal by exercising power under Section 100 of CPC. He also argued on scope of Section 64 and 65 of Limitation Act, in respect of claiming possession

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This Court by order dated 21.01.2008

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formulated the following substantial question of law:

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“Whether the Courts below were justified in granting a relief of possession when the plaintiff failed to seek the relief of declaration of title ?”

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Having heard learned counsel for the

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parties, I have carefully considered the findings recorded by both the Courts below.

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It is the case of the plaintiffs that item

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Nos.1 to 3 mentioned in the schedule to the plaint were belonging to one Babusab and after his death, the plaintiffs have inherited the same. It is the case of the plaintiffs that the defendant is the adjacent owner and he has encroached in an extent of 16½ guntas of

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land in Sy.No.94/2 and an extent of 6 guntas in Sy.No.94/3 3½ guntas of land in Sy.No.94/4. It is also stated in the plaint that the plaintiffs got surveyed the property and thereafter they came to know that the encroachment has been made by the defendant

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and accordingly they have issued notice to the defendant on 18.06.1990. However, the defendant did not bother to vacate the encroached portion and sent a evasive reply and therefore, they were constrained to file the suit against the defendant.

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It is the case of the defendant that item No.1 is the ancestral property of the defendant and he is in exclusive possession and enjoyment of the suit schedule property. The defendant also stated in para 7A of the written statement that the defendant has not encroached any portion in item Nos.2 and 3, however had taken a defence that he is in possession of item No.1 of the suit property by adverse possession and as such, he has perfected his title. In that view of the matter, it could be inferred that the defendant has failed to prove that he got item No.1 from his ancestors.

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I have also noticed the testimony of PW.2 who is the son of vendor of Babu sab. The said

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witness was cross examined by the plaintiffs on the ground that he has become hostile. PW.2 deposed as follows:

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“¸ÀzÀj d«ÄÃ£ÀÄ »AzÉ ¥ÀæwªÁ¢ ªÀÄvÀÄÛ DvÀ£À vÀAzÉ ¸Áé¢Ã£ÀzÀ°è EvÀÄÛ JAzÀgÉ ºËzÀÄ. ¸ÀzÀjÃ d«ÄÃ¤£À°è ¥ÀÆªÀð¢AzÀ PÀ®Äè PÀlÖqÀzÀ UÀÄAqÀÄ ¨Á« EzÉ JAzÀgÉ EzÉ. CzÀ£ÀÄß PÀnÖ 20-25 ªÀµÀðUÀ¼ÀÄ DVzÉ JAzÀÄ ¸ÁQë ¸ÀévÀ: ºÉÃ¼ÀÄvÁÛgÉ. ¸ÀzÀj ¨Á«AiÀÄ£ÀÄß PÀnÖ¹zÀªÀgÀÄ ¥ÀæwªÁ¢AiÀÄ vÀAzÉ JAzÀgÉÃ ºËzÀÄ. ¨ÉÆÃgÀÄªÀ°è¤AzÀ®Ä ¸ÀzÀj ¨Á«UÉ ¤ÃgÀÄ ©lÄÖPÉÆnÖzÁÝgÉ JAzÀgÉ ºËzÀÄ”

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He also deposed on 11.02.1998 as follows:

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“ªÀiÁgÁlªÁVgÀÄªÀ d«ÄÃ£ÀÄ £À£Àß vÀAzÉUÉ ºÉÃUÉ §AvÀÄ J£ÀÄßªÀÅzÀÆ UÉÆwÛ®è. CzÀÄ £ÀªÀÄä vÀAzÉUÉ AiÀiÁªÀ E¸À«AiÀÄ°è §AvÀÄ J£ÀÄßªÀÅzÀÄ UÉÆwÛ®è.”

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Perusal of the testimony of PW.2 indicates that he

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was not aware how item No.1 of suit schedule properties has come to his father. However, he deposed that his father was in cultivation of the said land.

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In order to ascertain whether there is

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encroachment made by the defendant or not, I have

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carefully considered the testimony of DW.1, who deposed on 12.07.2002 as hereunder:

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“¸À.£ÀA.94.2 PÉÌ ¥À²ÑªÀÄPÉÌ, £Á£ÀÄ MvÀÄÛªÀj ªÀiÁrPÉÆArgÀÄªÀ d«ÄÃ£ÀÄ CAvÀ ºÉÃ½zÉÝÃ£É J£ÀÄßªÀÅzÀÄ ¸Àj. D ¨Á§Æ ¸Á¨ï£ÀzÀÄÝ DVgÀÄvÀÛzÉ. ¸À.£ÀA. 94:3PÉÌ zÀQëtPÉÌ £Á£ÀÄ MvÀÄÛªÀj ªÀiÁrPÉÆArgÀÄªÀ 3 UÀÄAmÉ d«ÄÃ£ÀÄ CAvÀ ºÉÃ½zÀÄÝ CzÀÆ ¸ÀºÁ ¨Á¨Á¸Á¨ïzÁVgÀÄvÀÛzÉ. £ÀªÀÄä «¨sÁUÀ ¥ÀvÀæzÀ°è ¸À.£ÀA.94:2£ÀÄß £ÀªÀÄä ¨sÁUÀPÉÌ CAvÀ §gÉ¹PÉÆArgÀÄvÉÛÃ£É.

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40-45 ªÀµÀðUÀ¼À »AzÉ £Á£ÀÄ MvÀÄÛªÀj ªÀiÁrPÉÆArzÉÝÃ£É J£ÀÄßªÀÅzÀÄ ¸ÀjAiÀÄ®è, £Á£ÀÄ CfðAiÀÄ£ÀÄß £ÁåAiÀiÁ®AiÀÄPÉÌ ºÁdgÀÄ¥Àr¹®è, £Á£ÀÄ MlÄÖ 26 UÀÄAmÉ d«ÄÃ£ÀÄ ¸Áé¢üÃ£À ºÉÆA¢gÀÄvÉÛÃ£É. £Á£ÀÄ ¸ÀªÉðÃAiÀÄ£ÀÄß ªÀiÁr¹®è. ªÁ¢ ¸ÀªÉð ªÀiÁr¹zÁUÀ £Á£ÉÃ£ÀÆ EgÀ°®è C£ÀÄßªÀÅzÀÄ ¸ÀjAiÀÄ.”

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He also deposed that

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“¸ÀªÉðÃ £ÀA.94 £ÀªÀÄä ¨sÁUÀPÉÌ §A¢zÀPÉÌ AiÀiÁªÀÅzÉÃ zÁR¯É EgÀÄªÀÅ¢®è.”

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The perusal of the evidence of DW.1 would

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indicate that it is the ancestral property. However, simultaneously I have considered the plea of adverse possession. DW1 in his evidence as deposed that there is no document to establish that how he got Sy.No.94. Taking into consideration the

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aforementioned facts on record, I have considered the findings recorded by the trial Court.

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Though learned counsel appearing for the appellants contend that the law of limitation has not been considered properly or appreciated by the trial Court, in this regard, I have carefully considered the findings recorded by the trial Court regarding Issue No.6 wherein the trial Court has come to the conclusion that the limitation would begin from the date of refusal to handover possession and immediately suit has been filed by the plaintiffs as per Article 65 of the Limitation Act. In the case of ABDUL LATHIF v. NAWAB KHAJEH HABIBULLAH reported in AIR 1939 CALCUTTA 354, it is held that disposition involves complete ouster by the defendant of what was held in possession by the plaintiff. In law, nothing short of actual physical disposition can be deemed to be disposition. In the case of NARHARI v. AMBADAS reported in ILR 1956 HYD 685, it is held that,

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according to the working of Article 64 of Limitation Act for discontinuance of possession, it is not only necessary that the possession of the possessor should discontinue, but it is also necessary that it should be followed by somebody who should actual possession. It is well established principle in law that where the plaintiff alleges possession of land it is found that part of the land is de-facto in the possession of the defendant, the case fall under Article 64 of the Act and not under Article 65 of the Act. Articles 64 and 65 of the Act are both rules of limitation, the only difference being that in the case of Article 64, the onus lies on the plaintiff to prove his possession within twelve years, while in the case of Article 65, it is for the defendant to prove when his possession became adverse. In a suit for possession of an interest in immovable property, the question when the possession of the defendant becomes adverse to the plaintiffs depends on the nature of the interest, particularly, when it is incorporeal right. Every suit for possession of

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immoveable property in which the plaintiff alleges that he has had possession, must fall under Article 64 of the Act and it is only where the plaintiff has not alleged that he has ever been in possession that the case will fall under Article 65 of the Act. In Article 64 of the Act, the plaintiff is bound to show that the disposition or discontinuance of possession which give rise to the starting point of limitation was within twelve years of the date of the suit. Article 65 of the Act pertains to immovable property or any interest therein, while Article 64 of the Act specifies only immovable property and therefore, “interest in immovable property” is outside the scope of Article 64 of the At. It must be stated that Article 65 cannot be invoked where the case is coverable under Article 64 of the Act. Article 65 governs suit for possession based on title. The plaintiff under Article 65 of the act, cannot rest content on proof of his title for over twelve years before the suit. In suits on possessary title under Article 64 of the Act, plaintiff must prove acts of possession within twelve

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years of the suit. In a suit for declaration of title and injunction, the revenue record must show that the party is in continuous possession for more than twelve years and in such cases, plea of the party be accepted of perfecting title by adverse possession. In the instant case, relief sought for by the plaintiff for possessary rights, though declaratory relief was not sought. The parties to the lis have understood that though the suit is one for possession, issue No.2 was with regard to declaratory relief and the parties led the evidence even with regard to proving their delcaratory rights before the trial Court. In such circumstances, the argument advanced with regard to not filing of suit for declaratory relief cannot be accepted and mere relief of possessory rights under Article 64 of the Act itself is sufficient to resolve the dispute. Therefore, the finding recorded by the trial Court is just and proper and do not call for interference in this appeal.

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I have considered the fact that though the defendant has raised a plea relating to adverse possession, however, there is no pleading in the written statement nor in the evidence from which date he was in possession of the property. No date or time has been specified in the pleadings or in the evidence to establish that he is in possession of the land against the true owner. Therefore, the finding recorded by the trial Court with regard to additional issue No.2 is just and proper.

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I have also considered the finding recorded by the trial Court with regard to the remaining issues and also taken into consideration the law declared by the Apex Court in Ananthula Sudhakar ’s case whereunder the Apex Court has held that whenever there is a cloud on the title, the parties are required to file a suit for declaration.

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In the background of the law declared by the Apex Court in the aforementioned case, I have

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carefully considered issue No.2. The trial Court after considering the material on record has formulated issue No.2 in favour of the plaintiff holding that Babusab has proved that the land bearing Sy.No.94/2, 94/3 and 94/4 are belonging to him and therefore, I do not find any perversity in the finding of the trial Court and same was affirmed by the First Appellate Court. Therefore I do not find any illegality committed by both the Courts below with regard to consideration of issue No.2.

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Recently the Apex Court in the case of Jose vs. Johnson reported in (2020)3 SCC 780 at paragraph 11 has held as under:

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“ 11. In the backdrop of the

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contentions put forth, though there could be no cavil to the position relating to the relevance of possession being the prime consideration in a bare suit for injunction as contended by the learned senior advocate for the plaintiff, each case will have to be examined on its own merits keeping in view the nature of the pleading put forth before the trial court and the understanding

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of the case with which the parties have gone to trial. If this aspect is kept in view the very nature of the plaint averments would indicate that the parties to the suit are related to each other and the property which was being commonly enjoyed by their predecessors was partitioned under the Deed No.2617/2007. The present dispute had arisen when the plaintiff was seeking to put up a construction of the wall and the defendants had objected to the same. The prayer in the plaint reads as hereunder:

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“(a) issue a permanent prohibitory injunction restraining the defendants and their people from trespassing into the plaint schedule property or questioning the right of the plaintiff or obstructing the enjoyment of the plaintiff or committing waste trespassing into the plaint schedule property or destroying the peaceful life of the plaintiff. ”

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In view of the law declared by the Apex Court in the aforementioned case, though the defendant has raised a plea questioning the title of the plaintiffs, the suit has been filed for recovery of possession and the trial Court has framed issue No.2 and both the parties have led evidence, considering the fact that was instituted seeking declaratory relief,

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therefore I do not find any acceptable argument advanced by the learned counsel for the appellants.

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As regards the argument advanced by the

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learned counsel for the appellants with regard to framing of issues wherein he contended that though as

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many as 9 main issues have been formulated by the Trial Court, the finding recorded by the Trial Court on each of the same cannot be considered in the light of Order XIV Rule 3 of CPC. In the light of law declared by this Court in RSA No.1963/2005, is concerned. I have carefully considered the language employed in Order XIV Rule 3 of CPC which makes it clear that the Court must give finding to the question raised and that the Court cannot travel beyond the pleadings. However, in the instant case, in view of the fact that the defendant has raised plea relating to title, the Trial Court rightly framed issue No.2 with regard to the title

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of Babusab and therefore, the said judgment relied upon by the appellants is not applicable to the case on

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hand. Both the parties understood that the title to the property is to be proved by them as supplementing the relief claimed in the suit.

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Having regard to the fact that both the Courts below, after considering the entire material on record, have rightly held that the defendant has encroached the portion of the land belonging to the plaintiffs and accordingly directed the defendants to vacate the encroached portion of the land and as such, the said finding recorded by both the Courts below is just and proper and do not call for interference in this appeal. However, in view of the fact that PW.2, who has become hostile, has been cross examined by the plaintiffs and on perusal of the plaint and the evidence of DW.1, I am of the considered view that the dismissal of this appeal would not preclude the defendant from filing the suit for declaration if so advised to protect his interest in view of the fact that there is no issue framed by the Trial Court with regard

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to the plea raised regarding the adverse possession with regard to the ownership of item No.1.

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I have also noticed that the plaintiffs have

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filed a suit for recovery of possession and not for declaration of title in the Suit. In view of the same, in

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the event, if such a suit is filed by the defendant seeking relief of declaration, the Trial Court should not be influenced by any of the observations made in the course of this judgment, and all the contention of the parties are kept open.

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In the result, the substantial question of law favours the plaintiffs and accordingly, the appeal is dismissed.

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Sd/JUDGE

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akc

Sri Anjinappa v. Smt Babun Bi

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Sri Anjinappa v. Smt Babun Bi

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