Allowed

Smt Puttamma v. Sri Nandyappa @ Goratti Sanna Nandyappa

Karnataka HC11 Oct 2023RSA/2236/2011

Case brief

AI extract

What is this about?

This High Court Bench allowed the second appeals filed by the plaintiff, holding that the Trial Court's findings on title and possession were correct. The Court quashed the Appellate Court's decree which nonsuited the plaintiff under Section 27 of the Limitation Act, ruling that the plea of adverse possession was not set up. Consequently, the plaintiff is declared the absolute owner entitled to po

What did the court decide?

The second appeals are allowed; the Appellate Court's judgment and decree are set aside; the Trial Court's judgment and decree regarding title and possession are restored.

Smt Puttamma Vs Sri Nandyappa @ Goratti Sanna Nandyappa — Partition | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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R.S.A NO. 2236 OF 2011 (DEC/INJ) C/W R.S.A NO. 2237 OF 2011 (DEC/INJ)

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IN RSA NO.2236/2011 BETWEEN:

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1 . SMT PUTTAMMA AGED ABOUT 64 YEARS W/O KARIBASAPPA R/O MELINAHANASAVADI VILLAGE, HOLALUR HOBLI, SHIMOGA TALUK SINCE DEAD BY LRs

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1A. NANDYAMMA @ ANNAPOORNAMMA, W/O BASAVARAJAPPA, AGED ABOUT 59 YEARS, R/O CHIKKAJOGIHALLI VILLAGE, SHIKRAIPURA TALUK - 577427

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1B. YASHODA, W/O VEERESHAPPA AGED ABOUT 48 YEARS, R/O TYAJAVALLI VILLAGE, SHIMOGA TALUK - 577201.

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1C. SINDHU, D/O NAGARAJAPPA & LATE MANJULA, AGED ABOUT 22 YEARS, R/O TYAJAVALLI VILLAGE, SHIMOGA TALUK - 577201.

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1D. SANJU S/O NAGARAJAPPA & LATE MANJULA, AGED ABOUT 20 YEARS, R/O TYAJAVALLI VILLAGE, SHIMOGA TALUK - 577201.

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2 . SRI RUDRESHAPPA AGED ABOUT 43 YEARS S/O KARIBASAPPA R/O MELINAHANASAVADI VILLAGE, HOLALUR HOBLI, SHIMOGA TALUK

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...APPELLANTS

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(BY SRI.R GOPAL, ADVOCATE)

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AND:

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SRI NANDYAPPA @ GORATTI SANNA NANDYAPPA AGED ABOUT 80 YEARS S/O LATE KARIBASAPPA R/O MELINAHANASAVADI VILLAGE, HOLALUR HOBLI, SHIMOGA TALUK REP BY HIS GPA HOLDER SRI G N VEDAMURTHY S/O SRI NANDYAPPA @ GORATTI SANNA NANDYAPPA R/O MELINAHANASAVADI VILLAGE, HOLALUR HOBLI, SHIMOGA TALUK BY HIS LEGAL REPRESENTATIVES.

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1A. SMT. PARVATHAMMA, W/O LATE NANDYAPPA @ GORRATI SANNANANDAYAPPA, AGED ABOUT 60 YEARS, R/O MELINAHANASAVADI VILLAGE, HOLALUR HOBLI, SHIVAMOGGA TALUK.

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1B. SRI.NAGARAJAPPA S/O LATE NANDYAPPA @ GORRATI SANNANANDAYAPPA, R/O MELINAHANASAVADI VILLAGE, HOLALUR HOBLI, SHIVAMOGGA TALUK. SINCE DEAD BY LRS.

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1B(I) BASAMMA, W/O LATE NAGARAJAPPA, MAJOR.

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1B(II) VINAYAKUMAR, S/O LATE NAGARAJAPPA, MAJOR.

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1B(III) ASHWININ H.N D/O LATE NAGARAJAPPA, MAJOR.

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ALL THESE LRs ARE R/O SOUJANYA NILAYA, 9^TH AND 10^TH CROSS, JETTAS NAGAR, VINOBHANAGARA, SHIVAMOGGA-577201.

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(AMENDED VIDE ORDER DATED 01.06.2023)

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1C. SMT. HAMAVATHI, D/O LATE NANDYAPPA @ GORRATI SANNANANDAYAPPA, AGED MAJOR, R/O C/O PARVATHAMMA, MELINAHANASAVADI VILLAGE, HOLALUR HOBLI, SHIVAMOGGA TALUK.

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1D. SRI.VEDAMURTHY, S/O LATE NANDYAPPA @ GORRATI SANNANANDAYAPPA,

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AGED MAJOR, R/O C/O PARVATHAMMA, MELINAHANASAVADI VILLAGE, HOLALUR HOBLI, SHIVAMOGGA TALUK.

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1E. SMT.INIRAMMA, W/O THIMAPPA, AGED MAJOR, R/O ARABILICHI (POST & POST) BHADRAVATHI TALUK.

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…RESPONDENTS

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(BY SRI.G.KRISHNAMURTHY, SR.COUNSEL FOR SRI.PRASHANTH.H.S, ADVOCATE FOR R1(A & C TO E) (VK NOT FILED); R1(B)(I) TO R1(B)(III) - SERVED)

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 17.9.2011 PASSED BY THE 2^ND ADDITIONAL SENIOR CIVIL JUDGE & SHIMOGA ALLOWING R.A.NO.41/2011 AND CONFIRM THE JUDGMENT AND DECREE DATED 02.06.2009 PASSED BY THE 3^RD ADDITIONAL CIVIL JUDGE (JR.DN.) AND JMFC AT SHIMOGA IN O.S.NO.740/2000 FILED BY THE APPELLANT, IN THE INTEREST OF JUSTICE AND EQUITY.

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IN RSA NO.2237/2011 BETWEEN:

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1 . SMT PUTTAMMA AGED ABOUT 64 YEARS W/O KARIBASAPPA R/O MELINAHANASAVADI VILLAGE, HOLALUR HOBLI, SHIMOGA TALUK SINCE DEAD BY LRs

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1A. NANDYAMMA @ ANNAPOORNAMMA, W/O BASAVARAJAPPA,

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AGED ABOUT 59 YEARS, R/O CHIKKAJOGIHALLI VILLAGE, SHIKRAIPURA TALUK - 577427

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1B. YASHODA, W/O VEERESHAPPA AGED ABOUT 48 YEARS, R/O TYAJAVALLI VILLAGE, SHIMOGA TALUK - 577201.

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1C. SINDHU, D/O NAGARAJAPPA & LATE MANJULA, AGED ABOUT 22 YEARS, R/O TYAJAVALLI VILLAGE, SHIMOGA TALUK - 577201.

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1D. SANJU S/O NAGARAJAPPA & LATE MANJULA, AGED ABOUT 20 YEARS, R/O TYAJAVALLI VILLAGE, SHIMOGA TALUK - 577201.

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2 . SRI RUDRESHAPPA AGED ABOUT 43 YEARS S/O KARIBASAPPA R/O MELINAHANASAVADI VILLAGE, HOLALUR HOBLI, SHIMOGA TALUK

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...APPELLANTS

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(BY SRI.R GOPAL, ADVOCATE)

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AND:

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SRI NANDYAPPA @ GORATTI SANNA NANDYAPPA AGED ABOUT 80 YEARS S/O LATE KARIBASAPPA R/O MELINAHANASAVADI VILLAGE, HOLALUR HOBLI, SHIMOGA TALUK REP BY HIS GPA HOLDER SRI G N VEDAMURTHY

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S/O SRI NANDYAPPA @ GORATTI SANNA NANDYAPPA R/O MELINAHANASAVADI VILLAGE, HOLALUR HOBLI, SHIMOGA TALUK BY HIS LEGAL REPRESENTATIVES.

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1A. SMT. PARVATHAMMA, W/O LATE NANDYAPPA @ GORRATI SANNANANDAYAPPA, AGED ABOUT 60 YEARS, R/O MELINAHANASAVADI VILLAGE, HOLALUR HOBLI, SHIVAMOGGA TALUK.

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1B. SRI.NAGARAJAPPA S/O LATE NANDYAPPA @ GORRATI SANNANANDAYAPPA, R/O MELINAHANASAVADI VILLAGE, HOLALUR HOBLI, SHIVAMOGGA TALUK. SINCE DEAD BY LRS.

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1B(I) BASAMMA, W/O LATE NAGARAJAPPA, MAJOR.

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1B(II) VINAYAKUMAR, S/O LATE NAGARAJAPPA, MAJOR.

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1B(III) ASHWININ H.N D/O LATE NAGARAJAPPA, MAJOR.

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ALL THESE LRs ARE R/O SOUJANYA NILAYA, 9^TH AND 10^TH CROSS, JETTAS NAGAR, VINOBHANAGARA, SHIVAMOGGA-577201.

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(AMENDED VIDE ORDER DATED 01.06.2023)

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1C. SMT. HAMAVATHI, D/O LATE NANDYAPPA @ GORRATI SANNANANDAYAPPA, AGED MAJOR, R/O C/O PARVATHAMMA, MELINAHANASAVADI VILLAGE, HOLALUR HOBLI, SHIVAMOGGA TALUK.

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1D. SRI.VEDAMURTHY, S/O LATE NANDYAPPA @ GORRATI SANNANANDAYAPPA, AGED MAJOR, R/O C/O PARVATHAMMA, MELINAHANASAVADI VILLAGE, HOLALUR HOBLI, SHIVAMOGGA TALUK.

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1E. SMT.INIRAMMA, W/O THIMAPPA, AGED MAJOR, R/O ARABILICHI (POST & POST) BHADRAVATHI TALUK.

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…RESPONDENTS

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(BY SRI.G.KRISHNAMURTHY, SR.COUNSEL FOR SRI.PRASHANTH.H.S, ADVOCATE FOR R1(A, C TO E) (VK NOT FILED); R1(B)(I), R1(B)(II), R1(B)(III) - SERVED)

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 17.9.2011 PASSED BY THE 2^ND ADDITIONAL SENIOR CIVIL JUDGE & SHIMOGA ALLOWING R.A.NO.89/2009 AND CONFIRM THE JUDGMENT AND DECREE DATED 02.06.2009 PASSED BY THE 3^RD ADDITIONAL CIVIL JUDGE (JR.DN.) AND JMFC AT SHIMOGA IN O.S.NO.786/2000 FILED BY THE RESPONDENT, IN THE INTEREST OF JUSTICE AND EQUITY.

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THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 26.07.2023, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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These two captioned appeals are filed by the

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plaintiff in O.S.740/2000 and defendant No.3 in O.S.No.786/2000 assailing the judgment and decree passed in RA.No.41/2009 and RA.89/2009 wherein the appellate Court though concurred with the finding of the trial Court insofar as title, but reversed the finding of the trial Court in regard to possession. Consequently, suit filed by defendants in O.S.No.786/2000 for injunction is decreed and

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plaintiff's suit in O.S.No.740/2000 is dismissed by applying Section 27 read with Article 65 of the Limitation Act.

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For the sake of convenience the parties are referred to as per their rank before the trial Court in O.S.No.740/2000.

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3. The family tree is as under:

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Goravikatte Veerabasappa

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-----------------------------------------------------| | G.Karibasappa G.Bylappa | | Nandyavva (wife) Bylappa | | ----------------------------------------------- Eramma(wife) | | | Rudramma Nagamma G.Nandyappa W/o Nandyappa Died - 1976 W-Sanna Nandyappa S/o Hanumanthappa Parvathamma (W) | | Puttamma ------------------------------------------W/o Karibasapa | | | | | Nagarajappa Hemavathi Indramma Vedamurthy | -------------------------------------------| | | | Nandyamma Manjula Yashodha Rudresha

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3. Plaintiff instituted the suit for declaration

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and injunction and in the alternate for possession in O.S.No.740/2000. Plaintiff's contention is that her

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father Nandyappa was granted land bearing No.5A measuring 3 acres which was later assigned new Survey No.17, while plaintiff No.2-Eramma in

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O.S.No.786/2000 was granted land bearing PR.No.5B measuring 3 acres 10 guntas. Plaintiff has further contended that the land granted to her father though originally was assigned PR.No.5A, it was later reassigned Survey No.17 and the land granted to one Bylappa in respect of PR.No.5B was reassigned Survey No.19.

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Both the suits are clubbed and common evidence is recorded. Plaintiff asserting title based on Ex.P12 which is a grant order has let in oral and documentary evidence by producing documents vide Exs.P1 to 18 while defendant has let in rebuttal evidence vide Exs.D1 to 16.

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The trial Court referring to the title documents more particularly Ex.P12 coupled with Village Map vide Ex.P1 and mutations vide Ex.P9 to 11, the trial Court decreed the suit declaring plaintiff

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as the absolute owner and also held that plaintiff has succeeded in proving her possession over the suit property. Consequently, the suit filed by defendant seeking bare injunction in O.S.No.786/2000 was dismissed.

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Feeling aggrieved by the judgment and decree rendered by the trial Court in both the suits, sole defendant in O.S.No.740/2000 preferred two appeals in R.A.No.89/2009 and RA.41/2009. The Appellate Court though concurred with the finding of the trial Court insofar as the title of the suit property, however took a contrary view insofar as possession over the suit land is concerned. The appellate Court held that it is the defendant who is found to be in possession of the suit land and therefore, proceeded to hold that the suit filed by plaintiff seeking the relief of declaration and injunction and in the alternate possession is barred by limitation. The appellate

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Court held that plaintiff's right, if any, has stood extinguished under Section 27 of the Limitation Act (for short “the Act”). Consequently plaintiff's suit in O.S.No.740/2000 is dismissed and defendant's suit in O.S.No.786/2000 is allowed.

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This Court while admitting the appeal on has framed the following substantial questions of law for consideration:

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“(1) Whether the first appellate Court adopted the well-established principles of law in appreciating the evidence and in reversing the Judgment and Decree of the trial Court?

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(2) When the first appellate Court allowed the interim application for amendment of the plaint, whether it committed an error in disposing of the appeal without remitting the matter to the trial Court for giving an opportunity to the appellants to lead additional evidence?”

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Further, this Court on 12.06.2023 has framed

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the following additional substantial questions of law for consideration:

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"(i) Whether the finding of the appellate Court that defendant in O.S.No.740/2000 has acquired right in terms of Section 27 of the Limitation Act is patently erroneous and suffers from serious infirmities and is also contrary to settled position of law that provisions of Section 27 of the Limitation Act are to be read conjointly with Article 65 of the Limitation Act and only when a plea of adverse possession is set up and proved, the lawful owner would lose his rights under Section 27 of the Limitation Act?

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(ii) Whether the Appellate Court in absence of plea of adverse possession erred in applying Section 27 of the Limitation Act to nonsuit the plaintiff and the said finding suffers from serious infirmities and perversities?

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(iii) Whether the finding of the appellate Court that plaintiff in O.S.No.740/2000 has failed to establish her possession over the property is perverse and palpably erroneous and the

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consequent decree in favour of defendant holding that he is in possession suffers from perversity and the said reversal of the findings on possession by the appellate Court is not supported by any documentary evidence?"

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8. Learned counsel appearing for plaintiff

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reiterating the grounds urged in the appeal memo and referring to the substantial question of law formulated by this Court would vehemently argue and contend that the appellate Court erred in non-suiting plaintiff by applying Section 27 of the Act. He would point out that the finding recorded by the appellate Court is patently erroneous and contrary to the law laid down by the Apex Court in the case of Indra .vs. Arumugum and another¹ . The learned counsel for the plaintiff placing reliance on Ex.P12 would vehemently argue and contend that father of plaintiff was granted land bearing PR.No.5A measuring 3

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1 (1998) 1 SCC 614

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acres. Referring to Ex.P1, he would contend that PR.No.5A was renumbered as Survey No.17. Placing reliance on Ex.P3 coupled with Ex.P9, he would point out that the dispute in regard to whether new survey number refers to Survey No.5A or 5B has been given quietus by the Tahsildar and the Assistant Commissioner. Both the authorities have held that Survey No.5A refers to new Survey No.17 and both the authorities have found that plaintiff is in possession. He would vehemently argue and contend that plaintiff who is the daughter of the original grantee Nandyappa got her name mutated to the revenue records. Placing reliance on Exs.P6 and 7, he would vehemently argue and contend that the name of father of plaintiff was appearing in revenue records and mutation was effected based on the grant order vide Ex.P12. Placing reliance on Ex.P8, he would point that in the revenue records in the cultivator’s column,

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name of plaintiff’s father is indicated which clearly establishes that plaintiff’s father during his life time was in exclusive possession and after his death, plaintiff being the sole surviving Class-I heir is in possession of the property.

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Learned counsel while questioning the findings of the appellate Court in regard to possession would vehemently argue and contend that there is not even a slender evidence let in by defendant to substantiate their claim that they are in possession of Survey No.17. D.W.4 who is examined on behalf of defendant vide Ex.P18 has deposed that land owned by defendant bearing Survey No.17 is situated in Melinahanasavaadi village. Questioning Ex.D6 which is the mahazar, he would contend that it has no evidentiary value. D.W.2 who has made a statement that he was present when the mahazar was drawn has not signed the mahazar while the other mahazar

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witness who is examined as D.W.3 has not offered for cross-examination. D.W.4 who is the another witness has not specifically stated that he was present when the mahazar was drawn and further has not deposed that plaintiff was present when the mahazar vide Ex.D6 was drawn. Questioning the genuineness of Ex.D10 he would vehemently argue and contend that the entry of the name of Goratti Nandyappa is not at all based on any valid mutation. To buttress his arguments, he has placed reliance on the following judgments:

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i) Bhimappa Channappa Kapali and others .vs. Bhimappa Satyappa Kamagouda and others [ILR 2002 KAR 3055]

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ii)Indira .vs. Arumugam and another [(1998) 1 SCC 614]

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iii)Ram Nagina Rai and another .vs. Deo Kumar Rai(deceased) by legal representatives and another [(2019) 13 SCC 324]

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iv)Ghewarchand and others .vs. Mahendra Singh and others [(2018) 10 SCC 588]

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v)Mst.Rukhmabai .vs. Lala Laxminarayan and others [AIR 1960 SC 335]

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vi)S.P.Chengalvaraya Naidu(dead) by LRs. .vs. Jagannath (dead) by LRs. and others [(1994) 1 SCC 1

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Referring to additional evidence, which is now sought to be produced before this Court i.e. mutation order bearing No.12/94-95 under which the name of Eramma (Plaintiff No.2 in O.S.No.786/2000) came to be mutated under Ex.D2, the learned counsel submits that there is a reference that land bearing PR No.5B is now assigned new Survey No.19 and not Survey No.17, which is the subject matter of the suit. Referring to document No.9, which is a registered Will dated 8.2.2000, he would further point out that admittedly the land bearing Survey No.19 which was earlier bearing PR.No.5B was bequeathed by said Eramma. The legatee got his name mutated as per document No.11 and this legatee in turn has sold

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Survey No.19 to his own brother. Referring to all these documents, he would contend that these documents being public documents clearly demonstrate that the claim of defendant that P.R.No.5A is not reassigned survey No.17 stands contradicted in view of these additional documents. Referring to document No.1, which is a mutation extract, Document No.10 which is copy of the registered Will, he would point out that defendant's property bearing PR.No.5B measuring 3 acres 10 guntas is reassigned new Survey No.19 and therefore, defendant cannot assert possession and title over Survey No.17.

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Learned Senior Counsel Sri. G Krishna Murthy, while repelling the contentions raised by the plaintiff’s counsel would vehemently argue and contend that there are absolutely no pleadings indicating that PR No.5A was reassigned Survey

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No.17. While supporting the reasons of the appellate Court on the point of limitation, he would contend that though the suit was filed in 2000, the relief of declaration and alternative relief of possession was sought only in 2007. Therefore, the relief of declaration and possession is barred by limitation and a specific contention to the said effect is raised by defendant in additional written statement and therefore, he would request this Court to answer the substantial question of law formulated by this Court against plaintiff and in favour of defendant.

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Placing reliance on Article 58 of the Limitation Act, learned Senior Counsel would vehemently argue and contend that the present suit seeking relief of declaration and possession is hopelessly barred under Article 58 of the Act.

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Learned Senior Counsel would contend that

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since amendment application was filed in 2007, it will not relate back to the date of filing of the suit and therefore, the finding recorded by the Appellate Court on limitation does not suffer from any infirmities and would not warrant interference at the hands of this Court.

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Heard the learned counsel for the plaintiff and learned Senior Counsel appearing for defendant. Perused the divergent findings recorded by both the Courts below.

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It is not in dispute that both the Courts have declared plaintiff as the absolute owner of Survey No.17. The trial Court having examined the evidence let in by the plaintiff has come to the conclusion that plaintiff has not only succeeded in establishing her title but she has also succeeded in

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substantiating that she is in lawful possession over the suit land. The appellate Court though has concurred with the findings of the trial Court insofar as the plaintiff’s title is concerned, it has proceeded to nonsuit the plaintiff by applying Section 27 of the Act. This Court needs to examine the findings of the Appellate Court found at Paras 41 to 43, bearing in mind the law laid down by the Apex Court in the case of Indra .vs. Arumugam and another (supra) . The appellate Court in the above cited judgment, while examining Article 65 of the Act held that where a suit for possession is based on title, if title is established on the basis of relevant documents, unless defendant proves adverse possession for the prescriptive period, plaintiff cannot be non-suited.

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Now, let me examine the finding recorded by the Appellate Court in the light of the law laid down by the Apex Court in the judgment cited supra.

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Defendant has not set up the plea of adverse possession in the present case on hand. On the contrary, defendant has admitted plaintiff’s title over PR.No.5A measuring 3 acres. Therefore, the defendant has not set up the plea of adverse possession. Therefore, the appellate Court erred in applying Section 27 of the Act. Section 27 of the Act would come into play only when defendant succeeds in establishing that he has perfected his title by way of adverse possession. The appellate Court erred in reading Section 27 of the Act in isolation. It is a trite law that Section 27 of the Act has to be conjointly read with Article 65. A lawful owner’s right over the immovable property would stand extinguished only when defendant succeeds in establishing that he has perfected his title by way of adverse possession. For a suit for possession based on title, limitation Act is not applicable unless a case is made out by defendant

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under Article 65 of the Act. Therefore, the finding recorded by the appellate Court at Paragraphs 41 to 43 suffers from serious infirmities and perversities. Therefore, the substantial questions of law 1 and 2 are answered in the negative and additional substantial questions of law 1 and 2 are answered in the affirmative.

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16. My finding regarding Additional Issue

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No.3:

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The trial Court having examined the evidence on record has answered Issue Nos.1 to 3 and additional Issue Nos.1 and 2 in O.S.NO.740/2000 in the affirmative. Having assessed the evidence let in by the plaintiff, the trial Court has recorded a categorical finding that plaintiff has succeeded in substantiating that she is in lawful possession as on the date of filing of the suit. The appellate Court has however reversed

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this finding and has come to the conclusion that it is the defendant who is in lawful possession. The Appellate Court while recording its finding in regard to possession in favour of defendant has placed reliance on Ex.D6 which is the mahazar conducted by the revenue authorities. The appellate Court has placed heavy reliance on Ex.D10 which is revenue record pertaining to Survey No.17 standing in the name of defendant since 1969-70. As rightly pointed out by the learned counsel for the plaintiff, the mutation entry vide Ex.D10 is not based on any registered document reporting acquisition of rights. The name of one Goratti Nandyappa i.e. plaintiff No.1 in OS.No.786/2000 is mutated which is without any basis while plaintiff’s name is mutated to the revenue record pertaining to Survey No.17 based on a grant order vide Ex.P12. Even if the name of plaintiff No.1 in O.S.No.786/2000 is mutated, the same is without any

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basis. Even if the name of plaintiff No.1 (Goratti Nandyappa) is mutated for some time, this Court is unable to understand as to how Plaintiff No.2-Eramma in O.S.No.786/2000 under whom defendant’s son (DW.1) in O.S.No.740/2000 is asserting right based on a Will can lay a claim over Survey No.17 relying on Ex.D10.

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Now let me examine Ex.P14 which is the inam register. On examining Ex.P14, which is the Inam register, the same indicates that father of plaintiff was cultivating the land bearing PR No.5A measuring 3 acres. While husband of plaintiff No.2 in O.S.No.786/2000 namely Bylappa was cultivating the agricultural land bearing PR.No.5B measuring 3 acres 10 guntas. It is quite relevant to note at this juncture that Survey No.17 measures 3 acres and not 3 acres 10 guntas. Exs.P6 and P7 are the revenue records for 1989-90 and the said revenue records are standing in

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the name of plaintiff’s father both in ownership as well

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as in the cultivator’s column. On examining Ex.P8, the name of husband of plaintiff No.2 in O.S.No.786/2000 is mutated and name of plaintiff’s father is rounded off and in column No.10 there is a reference to one order, but the said order is not placed on record. If all these significant details are taken into consideration, what emerges is that defendant has tried to take advantage of similarity of his name with the father of plaintiff. One more significant detail which is lost sight by the Appellate Court is that plaintiff’s father was granted 3 acres in PR.No.5A. On examining the family tree furnished by the defendant before this Court, it is seen that the mother of plaintiff and the plaintiff in the connected suit in O.S.No.786/2000 are close relatives. Therefore, Survey No.17 is not at all owned by cousins of plaintiff’s mother Rudramma. PR.No.5A is granted

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to the father of plaintiff Nandyappa and therefore, the plaintiff in connected suit cannot lay a claim over the property bearing PR.No.5A (new survey No.17). Plaintiff has produced clinching evidence to substantiate that her father was the absolute owner and in lawful possession of Survey No.17. The rebuttal evidence let in by the defendant does not carry any evidentiary value. It is equally trite law that possession follows title. If both the Courts below have held that plaintiff has succeeded in establishing her title, the appellate Court erred in placing reliance on the documents which do not carry any evidentiary value. Therefore, the finding of the appellate Court that plaintiffs in connected suit are in lawful possession is not only perverse but suffers from serious infirmities. The appellate Court has not properly appreciated the evidence let in by both the parties. The finding on possession recorded by the

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appellate Court is not sustainable. Accordingly, additional substantial question of law No.3 is

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answered in the affirmative and against defendants.

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The appellant by way of abundant caution has produced additional documentary evidence to substantiate his claim that properties granted to the appellant’s father bearing PR No.5A is reassigned as Sy.No.17 and the property granted to the husband of plaintiff No.2-Eeramma in O.S.No.786/2000 bearing P.R.No.5B is reassigned as Sy.No.19. The appellant

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has also placed on record Will executed by plaintiff No.2 (O.S.No.786/2000) in favour of plaintiff No.1 in O.S.No.786/2000. Referring to the Will, he would point out that there is clear reference that P.R.No.5B is reassigned as Sy.No.19. Though these documents are found to be relevant documents, I am of the view that there is no need to take cognizance of the additional documentary evidence, in the light of my

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finding recorded in substantial questions of law framed and conclusions arrived therein. Though these additional documentary evidence may strengthen the appellant/plaintiff’s case in O.S.No.740/2000, any indulgence at the hands of this court in admitting these additional documentary evidence on record would only come to the aid of defendants and further protract the case and conclusion of the pending second appeals before this court. Therefore, in view of my findings recorded while answering substantial questions of law, I am not inclined to admit these additional documentary evidence on record. If these additional documentary evidence are taken on record, then parties have to be again relegated to lead further evidence which may further prejudice the rights of the appellant/plaintiff who is litigating the dispute since 2000. In that view of the matter, the application is rejected.

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19. Conclusions:

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(a) The cogent and clinching evidence let in by the appellant/plaintiff in O.S.No.740/2000 clearly establishes that appellant’s father was granted property bearing P.R.No.5A which was reassigned as Sy.No.17 measures 3 acres and husband of plaintiff No.2-Eeramma was granted property bearing P.R.No.5B which is reassigned as Sy.No.19 measures 3 acres 10 guntas. Admittedly, Sy.No.17 measures 3 acres which presupposes that property was bearing old P.R.No.5A and not 5B. The clinching evidence on record also indicates that Sy.No.17 measures 3 acres and extent tallies with old P.R.No.5B, which was also measuring 3 acre 10 guntas. These significant details would clearly clinch the controversy of reassignment of suit property bearing P.R.No.5A which was renumbered as Sy.No.17 and property bearing P.R.No.5B is renumbered as Sy.No.19. In the absence

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of rebuttal evidence, the appellant/plaintiff in O.S.No.740/2000 has not only succeeded in

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establishing her title over suit land but she has also succeeded in establishing that she is in exclusive possession of the suit land.

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(b) The finding of the appellate Court that plaintiff has failed to substantiate that she is in lawful possession of the suit land as on the date of filing of the suit is patently erroneous and contrary to Ex.P12(grant order) and Ex.P14(inam extract) coupled with village map-Exs.P1 and P2 and also mutations effected in 2001-2002 vide Ex.P9. The appellate Court while recording its finding on possession has given a complete disregard to the relevant and valuable piece of evidence placed on record by the plaintiff. The appellate Court has grossly erred in placing reliance on Ex.D6, which is the mahazar drawn by the revenue authorities which is not a conclusive

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evidence and does not dislodge the cogent and

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clinching evidence let in by the plaintiff.

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(c) The appellate Court in absence of plea of adverse possession grossly erred in invoking Section 27 of the Act without examining that unless the defendant succeeds in establishing title by way of adverse possession under Article 65 of the Act, the plaintiff’s suit seeking the relief of declaration and injunction cannot be dismissed.

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(d) The judgment rendered by the appellate Court runs contrary to the principles laid down by the Apex Court in the case of Indira .vs. Arumugam and another reported in (1998) 1 SCC 614. The findings recorded by the appellate Court in regard to possession of the parties is perverse and the said findings and conclusions arrived at by the appellate Court is based on no evidence at all let in by the

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defendant. The appellate Court has not considered the material evidence let in by the plaintiff which not only establishes her title but also substantiates her claim in regard to possession of the suit schedule property. The appellate Court has virtually misread the evidence. The appellate Court erred in assuming certain evidence do exist where there is none. The grant order vide Ex.P12 coupled with inam extract vide Ex.P14 clearly demonstrates that PR No.5A was granted to plaintiff’s father while PR No.5B was granted to the husband of Eramma namely Bylappa. Therefore, the plaintiff’s title in respect of suit property bearing Survey No.5A and her possession is clearly substantiated and established.

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(e) The judgment rendered in non-suiting the plaintiff by applying Section 27 of the Act is contrary to the law laid down by the Apex Court in the case Indira’s case (supra) and therefore, the judgment

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and decree rendered by the * appellate Court is not sustainable and this Court has rightly answered the substantial questions of law framed against the defendant. In absence of pleadings and issue, the appellate Court could not have applied Section 27 of the Act. Lawful owner’s title stands extinguished under Section 27 of the Act only when person asserting title by adverse possession succeeds in establishing that he has perfected his title by way of adverse possession.

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(f) The appellate Court having concurred with the findings of the trial Court and having held that plaintiff has succeeded in establishing her title has totally misread the entire evidence on record. The appellate Court has virtually misread the prayer sought in O.S.No.740/2000. The plaintiff has sought relief of declaration of her right thereto and for a consequential relief of injunction alleging that there is

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* Corrected vide Court order dated: 23.11.2023 .

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threat of infringement of possessory rights of plaintiff. Therefore, admittedly the present suit is not for possession and in absence of pleadings regarding adverse possession, Article 65 of Limitation Act has no application to the present case on hand. If Article 65 of the Act has no application to the present case on hand, the appellate Court has virtually misread the principles governing Section 27 and Article 65 of the Act. If the case is not one of dispossession or discontinuance of possession, the principles governing plea of adverse possession under Article 65 of the Act are not at all applicable to the present case on hand.

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(g) The appellate Court failed to note that plaintiff

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has not only claimed that she is in lawful possession but has succeeded in placing on record the cogent and clinching evidence to substantiate not only title over the suit land but also that she is in lawful possession as on the date of the filing of the suit and therefore,

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the plaintiff being a lawful owner has to be deemed to be in lawful possession of the suit land as on the date of filing of the suit. The appellate Court failed to note that there is not even a slender evidence to refute the claim of the plaintiff regarding possession. The Apex Court in catena of judgments has held that Article 65 of Limitation Act can be pressed into, provided the party asserting title by adverse possession clearly pleads and establishes all facts necessary for adverse possession. In the present case on hand, defendant is asserting title and has not set up the plea of adverse possession. Therefore, Article 65 and Section 27 of the Act have no application to the present case on hand.

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For the reasons stated supra, I proceed to pass the following:

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ORDER

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(i) The second appeals are allowed.

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(ii) The judgment and decree of the appellate Court passed in R.A.No.41/2011 reversing the judgment and decree passed by the trial Court in O.S.No.740/2000 is set aside and the judgment and decree rendered by the trial Court in O.S.No.740/2000 is restored by allowing the appeal filed in RSA.No.2236/2011.

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(iii) Consequently, the judgment and decree rendered by the Appellate Court in R.A.No.89/2009 in reversing the judgment and decree passed in O.S.No.786/ *2000 is set aside and the decree of dismissal passed in O.S.No.786/ *2000 is restored by allowing RSA.No.2237/2011.

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Sd/JUDGE

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*alb/-

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* Corrected vide Court order dated: 23.11.2023 .

Smt Puttamma v. Sri Nandyappa @ Goratti Sanna Nandyappa

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Smt Puttamma v. Sri Nandyappa @ Goratti Sanna Nandyappa

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