Dismissed

Smt Chekkera J Shanthi v. Sri Gudiyangada G Nachappa

Karnataka HC30 Oct 2023RSA/1517/2013

Case brief

AI extract

What is this about?

Regular Second Appeal filed against a judgment confirming a decree in a title suit. The High Court held the appeal was filed without challenges regarding maintainability, thus confirming the lower court's findings on adverse possession and limitation.

What did the court decide?

The appeal is dismissed. The judgments and decrees passed by the Courts below are hereby confirmed.

Smt Chekkera J Shanthi Vs Sri Gudiyangada G Nachappa — Specific Performance | Karnataka HC (2023)

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1 - NC: 2023:KHC:38640 RSA No. 1517 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 30^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE ASHOK S.KINAGI

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REGULAR SECOND APPEAL NO. 1517 OF 2013 (DEC)

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BETWEEN:

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SMT. CHEKKERA J SHANTHI W/O LATE C M JAYAKUMAR AGED ABOUT 59 YEARS RESIDENT OF K-BADAGA VILLAGE SRIMANGALA NAD VIRAJPET TALUK S KODAGU

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…APPELLANT

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(BY SRI. MRINAL KUTTAPPA, ADVOCATE FOR SMT. LEELA P. DEVADIGA, ADVOCATE)

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AND:

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Digitally signed by SUNITHA GANGARAJU

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Location: High Court of Karnataka

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SRI GUDIYANGADA G NACHAPPA S/O LATE G K GANAPATHY AGED ABOUT 66 YEARS R/O K-BADAGA VILLAGE SRIMANGALA NAD VIRAJPET TALUK S KODAGU

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…RESPONDENT (BY SRI. S B PAVIN, ADVOCATE)

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 8.8.2013 PASSED IN R.A.NO.22/2012 ON THE FILE OF THE II ADDL. DISTRICT JUDGE COURT, KODAGU, MADIKERI SITTING AT VIRAJPET, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT

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AND DECREE DATED 17.12.2011 PASSED IN O.S.NO.35/2003 ON THE FILE OF THE SENIOR CIVIL JUDGE, VIRAJPETE.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This second appeal is filed by the appellant challenging the judgment and decree dated 08.08.2013 passed in R.A.No.22/2012 by the II Additional District Judge Court, Kodagu, Madikeri sitting at Virajpet, confirming the judgment and decree dated 17.12.2011 passed in O.S.No.35/2003 by the Civil Judge,(Sr.Dn.), Virajpet.

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For the sake of convenience, parties are referred to as per their ranking before the trial Court. The appellant is the defendant and respondent is the plaintiff.

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The brief facts leading rise to filing of this appeal are as under:

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The plaintiff filed a suit for declaration of title and possession. It is the case of the plaintiff that, plaintiff is the absolute owner of the suit schedule property i.e., the

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property measuring 2.70 acres in Survey No.400/1API situated at K.Badaga village, Srimangala Hobli, Virajpet. It is the plaintiff that the said land is a granted land and the Government issued a saguvali Chit dated 21.12.1988 in favour of the plaintiff. The suit schedule property is adjacent to the property of the defendant and same is separated by the public road. The defendant being a neighbouring land owner, while developing her adjacent land has encroached upon the suit schedule property and enclosed it within her other holdings under a mistake and wrongly presenting and thinking that the said area comes within her holdings. The plaintiff being the neighbourer, to keep up cordial relationship, the plaintiff did not want to enter into litigation with the defendant. Therefore, the plaintiff agreed to sell the said suit schedule property i.e., encroached portion to the defendant for consideration of Rs.10 lakhs and parties have executed an agreement on 15.07.2001, wherein the defendant agreed to pay the encroached portion the consideration of Rs.10 lakhs on or before 24.08.2001 to the plaintiff. The defendant did not

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pay the consideration amount in terms of agreement dated 15.07.2001. The plaintiff got issued a legal notice dated 18.01.2003 calling upon the defendant to pay the consideration amount and to get the registered sale deed executed, failing which the necessary steps will be taken to recover the encroached portion of the suit land with cost and damages. The said notice was served on the defendant. Inspite of service of notice, the defendant neither replied the legal notice nor vacated the encroached portion of suit schedule property. Hence, cause of action arose for the plaintiff to file the suit for declaration of title and possession.

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The defendant filed the written statement by

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denying the plaint averments and contending that the defendant and her predecessors in title are in possession of the suit schedule property for more than 45 years and

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they have perfected their title by way of adverse possession. It is contended that Government had no authority to grant the suit schedule property in favour of

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plaintiff’s father. It is contended that plaintiff was working as a Sheristhedar in the office of the Tahasildar at Virajpet at the relevant time and he misused his position as an important officer in the office of the Tahasildar and obtained the grant order in respect of the suit schedule property in favour of his father. It is contended that defendant is in physical possession of the suit schedule property. It is admitted that there was a panchayat on 15.07.2001 as averred in the plaint. It is contended that in the said panchayat, it was the the plaintiff who offered to purchase the suit land from the defendant for consideration of Rs.10 lakh and not the other way as averred in the plaint. Further, the defendant has acquired her title by way of adverse possession and the plaintiff is not the owner of the suit schedule property. Hence, prayed to dismiss the suit.

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The Trial Court, on the basis of the above said

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pleadings, framed the following issues:

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1. Whether the plaintiff proves his title over the suit schedule property?

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2. Does he prove that he is entitled for the recovery of possession over the suit schedule property form the defendant?

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3. Does he prove that he is entitled for the mesne profits of total Rs.60,000/- for the year 2001, 2002 and 2003 seasons and entitled for Rs.40,000/- per year from the date of suit until the possession of the suit schedule property is delivered to him?

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4. Whether the defendant proves that she has perfected her title to the suit schedule property by law of adverse possession as pleaded?

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5. Whether the Court fee paid on valuation made is correct?

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6. For what reliefs the parties are entitled to?

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The plaintiff in support of his case, examined

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himself as PW.1 and examined 2 witnesses as PW.2 and PW.3 and got marked 20 documents as Exs.P.1 to P20. The defendant examined herself as DW.1 and examined two witnesses as Dw.2 and DW.3 and got marked 23 documents as Ex.D.1 to D23. The trial court considering the oral and documentary evidence, answered issues No.1

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to 3 and 5 in the affirmative, issue No.4 in the negative

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and consequently, decreed the suit of the plaintiff.

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The defendant, aggrieved by the judgment and

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decree passed by the trial Court, preferred an appeal in R.A.No.22/2012 on the file of II Additional District Judge, Kodagu, Madikeri sitting at Virajpet.

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The First Appellate Court, after hearing the

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parties, has framed the following points for consideration:

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1. Whether the plaintiff proves that suit schedule property is granted by the Government to his father in the year 1988 after the death of his father plaintiff's become absolute owner of the suit schedule property?

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2. Whether the plaintiff proves that defendant encroached upon the plaint schedule property?

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3. Whether the plaintiff is entitled for mesne profits for a sum of Rs.60,000/- for the year 2001, 2002 and 2003 and entitled for future mesne profits and Rs.40,000/- per year from the date of the suit till the date of possession?

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4. Whether the defendant proves that she has perfected her title to the suit schedule property by adverse possession?

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5. Whether the judgment and order in appeal call for any interference?

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6. What order?

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The First Appellate Court on re-appreciating the

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oral and documentary evidence, answered point Nos.1 and 2 in the affirmative and point No.3 and 4 in the negative and consequently, dismissed the appeal filed by the defendant.

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This court vide order dated 21.07.2014

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admitted the appeal on the following substantial questions of law :

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i. Was the suit of the plaintiff maintainable in the absence of disclosure of cause of action, to be entitled to get the relief of declaration and possession of the land of the defendant?

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ii. Was the suit of the plaintiff maintainable as the plaintiff has failed to reveal, whether the suit is for specific performance or a suit simplicitor for possession?

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iii. Was not the suit of the plaintiff barred by Article 65 of the Limitation Act, 1963?

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iv. Whether the Courts below were justified in decreeing the suit without answering the maintainability of the suit?

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Heard the learned counsel for the defendant and learned counsel for the plaintiff.

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Learned counsel for the defendant submits that the defendant and her predecessors in title were/is in possession of the suit schedule property for more than 45 years. He submits that they are in possession of the suit schedule property without interference and obstruction as a owner. He submits that defendant has perfected her title by way of adverse possession. He further submits that the Courts below without properly appreciating the evidence on record have passed the impugned judgments and decrees. Hence, he prays to allow the appeal.

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Per contra, learned counsel for the plaintiff submits that the defendant cannot claim adverse possession against the plaintiff unless the defendant admits the title of the plaintiff. Admittedly, in the instant

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case, at one step the defendant denied the title of the plaintiff and another step the defendant admits that there was an agreement between the plaintiff and defendant for purchasing the suit schedule property for consideration of Rs.10 lakhs and agreement was also came to be executed between the parties. She submits that execution of agreement is admitted by the defendant in the written statement. She submits that Courts below were justified in ignoring the facts of defendant's right and the defendant has perfected her title by way of adverse possession. She further submits that the plaintiff got issued a legal notice to the defendant calling upon the defendant to pay the consideration amount to execute a registered sale deed, failing which, the plaintiff to take steps to recover the possession. She submits that the defendant neither replied

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to the legal notice nor delivered the possession of the encroached portion of suit land. Hence, cause of action arose for the plaintiff to file the suit. She submits that the Courts below were justified in passing the impugned judgments and decrees. She further submits that the

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plaintiff disclosed the cause of action in the plaint and also she submits that the agreement came to be executed in the year 2001 and the suit was filed in the year 2003 and hence, suit filed by the plaintiff is within the time limit and prayed to dismiss the appeal.

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Perused the records and considered the submissions of learned counsel for the parties.

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Substantial question No.1: It is the case of the plaintiff that suit land was granted in favour of father of the plaintiff under the grant order i.e., Ex.P.12. On the strength of Ex.P.12, name of the plaintiff’s father was entered in the revenue records. After his demise, the plaintiff became the absolute owner of the suit schedule property. The defendant is the adjacent land owner, and the defendant made an encroachment in the suit schedule property. The plaintiff requested the defendant to deliver the possession of the encroached portion, but the defendant agreed to purchase the suit schedule property for consideration of Rs.10 lakhs and accordingly,

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agreement came to be executed between the parties as per Ex.P.19. It was agreed that the defendant should pay

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the consideration amount and to get the sale deed executed on or before 24.08.2001. The defendant did not come forward to pay the consideration amount and to execute the registered sale deed. The plaintiff got issued

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a legal notice to the defendant calling upon the defendant to pay the consideration amount and to get the registered sale deed, failing which, the defendant should deliver the possession. Inspite of service of notice, the defendant did not come forward and paid consideration amount. The plaintiff in order to substantiate his case, examined himself as PW.1 and he has reiterated the plaint averments in the examination-in-chief.

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Further, from the perusal of the plaint, the plaintiff has pleaded that said suit property was granted in favour of father of the plaintiff and also regarding execution of agreement by the defendant shown in para 8 of the plaint. From the perusal of evidence of the plaintiff

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and defendant, it is clear that the plaintiff is the owner of the suit schedule property and there was an agreement executed between the plaintiff and defendant in regard to the suit schedule property and further plaintiff got issued a legal notice to the defendant for execution of said agreement. From the perusal of the records, it is clear that the plaintiff has disclosed the cause of action, cause of action means a bundle of facts. From the perusal of facts, the plaintiff has already disclosed the cause of action and further the plaintiff has sought for relief of declaration of title. It is not in dispute that the defendant admitted the title of the plaintiff over the suit schedule property and agreed to purchase the suit schedule property from the plaintiff for consideration of Rs.10 lakhs. From the perusal of the agreement of sale executed between the parties, which discloses that plaintiff is the absolute owner of the suit schedule property and the defendant has failed to pay the consideration amount and to get the registered sale deed executed. In view of the above discussion, I answer substantial question No.1 in the negative.

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Substantial question No.2: As already I have recorded the finding in substantial question No.1 that there was an agreement between the plaintiff and defendant and defendant agreed to purchase the suit schedule property for consideration of Rs.10 lakhs from the defendant and it was agreed that the defendant to pay the consideration amount on or before 24.08.2001. The defendant has failed to pay the consideration amount and further the plaintiff got issued a legal notice calling upon the defendant to pay the consideration amount and to execute register sale deed, failing which, the plaintiff will take necessary steps to recover the possession of the suit schedule property. The defendant came in possession of the suit schedule property in part performance of contract. When the defendant has failed to prove that he was ready and willing to perform his part of contract, the defendant is not entitled for protection under section 53(A) of Transfer of Property Act. Further, it is for the plaintiff to file the suit for specific performance of contract but suit

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filed by the plaintiff is for the relief of declaration of title and possession. The facts of the case reveal that it is a simplicitor suit for possession. Hence, the suit filed by the plaintiff is maintainable. In view of the above discussion, I answer substantial question No.2 in the negative.

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Substantial question No.3: The plaintiff has filed the suit for declaration of title in respect of suit schedule property. Though the agreement came to be executed in the year 2001 i.e., on 15.07.2001 and it was agreed that the defendant has to pay the consideration amount on or before 24.08.2001 and to get the registered sale deed executed, but the defendant did not comply with terms and conditions of the agreement. The defendant claims that she has perfected her title by way of adverse possession against the State as well as the plaintiff. The defendant subsequently by virtue of the agreement of sale dated 15.07.2001 admitted the title of the plaintiff over the suit schedule property. Considering the date of agreement i.e., on 15.07.2001 the possession of the

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defendant cannot be said to be adverse to the plaintiff as the defendant herself agreed to purchase the suit schedule property. The defendant cannot claim adverse possession on the basis of agreement of sale. The suit filed by the plaintiff is based on title and to seek the relief of possession based on title as per Article 65 of Limitation Act, 1963. The defendant has not pleaded in the written statement, since how long the defendant is in possession of the suit schedule property, the possession was known to the public, the nature of the possession, the continuity of the possession and the duration of the possession. Hence, in view of the above discussion, the suit filed by the plaintiff is within the time limit prescribed. In view of the above discussion, I answer the substantial question No.3 in the negative.

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Substantial question No.4: The defendant has filed the written statement, but in the written statement the defendant has not taken the defence in regard to the maintainability of the suit. Further the trial court based on

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the pleadings of the parties, framed the issues. When the defendant has not taken defence in regard to the maintainability of the suit, the trial Court was justified in not answering the maintainability of the suit. In view of the above discussion, I answer substantial question No.4 in the affirmative. Hence, I do not find any grounds to interfere with the impugned judgments and decrees.

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Accordingly, I proceed to pass the following:

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ORDER

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The appeal is dismissed.

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The judgments and decrees passed by the Courts below are hereby confirmed.

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No order as to the costs.

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In view of disposal of the appeal, pending I.A, if any,

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does not survive for consideration and accordingly stands

disposed of.

JUDGE

Sd/-

SKS

Smt Chekkera J Shanthi v. Sri Gudiyangada G Nachappa

Case brief

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Smt Chekkera J Shanthi v. Sri Gudiyangada G Nachappa

Case brief

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