Dismissed

Smt Huligemma v. Abdulrasid

Karnataka HC28 Nov 2024RFA/771/2012

Case brief

AI extract

What is this about?

Defendants in possession since a 1957 agreement for sale appealed a decree granting the vendors' successors declaration of title and possession, claiming adverse possession. The High Court held possession was permissive and continuous litigation from 1973 to 2001 precluded hostile possession; the appeal was dismissed.

What the court decided

AI extract

Smt Huligemma Vs Abdulrasid — Property and Title | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:17498 RFA No. 771 of 2012

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IN THE HIGH COURT OF KARNATAKA,

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DHARWAD BENCH

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DATED THIS THE 28^TH DAY OF NOVEMBER, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

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REGULAR FIRST APPEAL NO. 771 OF 2012 (DEC)

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BETWEEN:

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SMT. HULIGEMMA W/O. HULAGAPPA MYADAR, DEAD BY LRS DIED ON 20.09.2016

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MANJUANTH S/O. HULAGAPPA MYADAR, Died on 23.09.2017

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2A. SMT. YASHODA W/O. MANJUNATHA MYADAR AGE: 43 YEARS, OCC: HOUSEHOLD WORK R/O. LINGARAJ CAMP GANGAVATHI TOWN, KOPPAL DISTRICT PIN – 583227.

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GIRIJA A BYAHATTI

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Location: HIGH COURT OF KARNATAKA

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2B. SRI. PAHULKUMAR S/O. MANJUNATHA MYADAR AGE: 29 YEARS, OCC: AGRICULTURE, R/O. LINGARAJ CAMP GANGAVATHI TOWN, KOPPAL DISTRICT PIN – 583227.

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2C. SMT. MEGHANA D/O. MANJUNATHA MYADAR, AGE: 27 YEARS, OCC: HOUSEHOLD WORK, R/O. LINGARAJ CAMP, GANGAVATHI TOWN, KOPPAL DISTRICT PIN – 583227.

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2D. SRI. VISHALKUMAR S/O. MANJUNATHA MYDAR,

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AGE: 25 YEARS, OCC: HOUSEHOLD WORK R/O. LINGARAJ CAMP, GANGAVATHI TOWN, KOPPAL DISTRICT PIN – 583227. 3. SRI. TEERAPPA S/O. HULAGAPPA MYADAR, AGED ABOUT 36 YEARS, OCC: AGRICULTURE, R/O: LINGARAJA CAMP, GANGAVATHI TOWN, KOPPAL DISTRICT PIN – 583227.

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SRI. NAGESHAPPA S/O. HULAGAPPA MYADAR, AGED ABOUT 34 YEARS, R/O: LINGARAJA CAMP, GANGAVATHI TOWN, KOPPAL DISTRICT PIN – 583227.

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…APPELLANTS

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(BY SRI. ANAND R. KOLLI, ADVOCATE)

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AND:

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ABDUL RASID S/O. SHEKA-IMAM DEAD BY HER LRS

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1A. SMT. THAHER BEGUM W/O. ABDULRASID AGE: 68 YEARS, OCC: HOUSE HOLD WORK, R/O. FORT AREA, GANGAVATHI, DIST: KOPPAL PIN – 581130. 1B. SRI. SHEIKIMAM @ MOHAMMED RIYAZ S/O. ABDULRASID AGE: 34 YEARS, OCC: AGRICULTURE, R/O. FORT AREA, GANGAVATI DIST: KOPPAL PIN – 581130.

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1C. SRI. MOHAMMED RIYAZ

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S/O. ABDULRASID AGE: 32 YEARS, OCC: AGRICULTURE, R/O. FORT AREA, GANGAVATI, DIST: KOPPAL PIN – 581130.

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SMT. FATIMABI W/O. LATE ABDULRAHIM, AGE: 61 YEARS, OCC: AGRICULTURE, R/O: FORT AREA, GANGAVATHI, DIST: KOPPAL PIN - 581130.

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MOHAMMADJAFFAR S/O. SHAI-IMAM AGE: 66 YEARS OCC: DRIVER, R/O: FORT AREA, GANGAVATHI, DIST: KOPPAL PIN - 581130.

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ABDULSATTAR S/O. SHIK-IMAM (DEAD BY HIS LRS)

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4A. SMT. MYNON BEGAM W/O. ABDULSATTAR, AGE: 50 YEARS, OCC: HOUSEHOLD WORK, R/O: 5^TH WARD NEAR AMBAHAVANI TEMPLE KILLA AREA, PIN – 581130.

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4B. SRI. GAFAR S/O. ABDUL SATTAR, AGE: 27 YEARS, OCC: AGRICULTURE, R/O.5^TH WARD NEAR AMBAHAVANI TEMPLE KILLA AREA PIN – 581130.

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4C. SRI. JABBAR S/O. ABDUL SATTAR AGE: 26 YEARS,

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OCC: AGRICULTURE, R/O. 5^TH WARD NEAR AMBAHAVANI TEMPLE, KILLA AREA, PIN - 581130.

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4D. SMT. SANEENA BEGAM, W/O. OKILSAB BALAGANUR @ DHAMED PASHA AGE: 30 YEARS, OCC: AGRICULTURE, R/O. BALAGANUR ROAD, VALMIKIN CIRCLE NASKI, LINGASGUR TQ, RAICHUR DIST

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4E. SMT. ZARINA BEGAM W/O. VALI PASHA, AGE: 25 YEARS, OCC: HOUSEHOLD WORK, R/O FISH MARKET, COUL BAZAR, BELLARY, PIN – 583101.

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HASSAN MOHIUDDIN S/O. SHAIKHA IMAM, AGE:54 YEARS, OCC: DRIVER, R/O: FORT AREA GANGAVATI TOWN, DIST: KOPPAL PIN - 581130.

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ABUDULSUBHAN S/O. SHAIKHA IMAM, AGE: 51 YEARS, OCC: DRIVER, R/O: FORT AREA, GANGAVATI TOWN, DIST: KOPPAL PIN - 581130.

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ABDUL AZEEZ S/O. SHAIKHA-IMAM, AGE:41 YEARS, OCC: DRIVER, R/O: FORT AREA, GANGAVATI TOWN, DIST: KOPPAL PIN - 581130.

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ABDULNABI S/O. SHAIKHA-IMAM, AGE:40 YEARS, OCC: AGRICULTURE, R/O: FORT AREA, GANGAVATI TOWN DIST: KOPPAL PIN - 581130.

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MOHAMMAD KASIM S/O. SHAIKHA-IMAM, AGED: 38 YEARS, OCC: AGRICULTURE, R/O: FORT AREA, GANGAVATI TOWN, DIST: KOPPAL PIN - 581130.

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…RESPONDENTS

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(BY SRI. CHANDRASHEKAR P. PATIL, ADVOCATE FOR C/R1-R9 & R1 (A-G) & R2, R3, R4 (A-E) & R5-R9; SRI. DEEPAK C. MAGANUR, ADVOCATE FOR R3 (A-K)

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THIS RFA IS FILED UNDER SEC.96 OF CPC., PRAYING TO ALLOW THIS APPEAL BY CALLING FOR THE RECORDS FROM THE COURT OF THE SENIOR CIVIL JUDGE AT GANGAVATI IN O.SNO.34/2006 AND SET ASIDE THE JUDGMENT AND DECREE PASSED IN O.S.NO.34/2006 DATED 17.04.2012 ON THE FILE OF THE CIVIL JUDGE (SR.DN), GANGAVATI AND FURTHER TO DISMISS THE SUIT O.S.NO. 34/2006 ORDER DATED 17.04.2012 WITH COSTS TO THE APPELLANTS THROUGHOUT.

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

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CORAM: THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

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ORAL JUDGMENT

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This appeal is against a decree granting declaration of title and possession in favour of the plaintiffs. Defendants are in appeal.

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Facts from the pleadings can be summarized as under:

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2.1. An agreement for sale dated 01.07.1957 in respect of the property bearing Sy.No.7 of Bagalapur village, Taluk Gangavathi measuring 10 acres 24 guntas was executed by Shaik Imam and his two brothers namely Mohammad Suleman and Hassan Moihuddin. The vendors agreed to sell the said property to one Hulugappa, who is the husband of defendant No.1 - Huligemma and the father of remaining three defendants.

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2.2. The agreement reveals that the purchaser Hulugappa agreed to purchase the property for Rs.4,131/- and Rs.3,500/- was paid as advance consideration amount. Balance was agreed to be paid at the time of registration of the sale deed. No time is stipulated for executing the sale deed. The agreement would also reveal that the possession is transferred to the proposed purchaser Hulugappa.

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2.3. Thereafter Shaik Imam filed a suit in O.S.No.61/1973 on the file of the Munsif, Gangavathi against Hulugappa seeking possession of the property.

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2.4. The said suit was contested by defendant Hulugappa, the proposed purchaser. In the said suit, defendant took a stand that he is ready and willing to perform his part of contract by paying the balance consideration amount. In addition, he also took a stand that his name is entered in the property records and he has

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been in lawful possession of the property pursuant to the agreement for sale. Thereafter, in para No.10 of the said written statement, he has also taken a defence of adverse possession.

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2.5. The said plaint for want of jurisdiction was returned to be presented before the appropriate forum.

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2.6. Thereafter O.S.No.30/1976 was filed on the file of the Senior Civil Judge, Koppal for the same relief by Shaik Imam. On transfer from one Court to another, suit was renumbered as O.S.No.30/1976 and again renumbered as O.S.No.151/1985 on being registered in Court at Koppal.

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2.7. Said suit was dismissed for non-prosecution and Miscellaneous Application No.99/1986 was filed to restore the suit. The plaintiff has withdrawn the said miscellaneous proceeding

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stating that the defendant Hulugappa has surrendered the possession to the plaintiff. However, the defendant disputed this contention.

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2.8. Thereafter, the dispute arouse between the parties in a proceeding under Section 145 of Criminal Procedure Code in respect of the suit property.

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2.9. The proceeding was initiated at the behest of the vendors before the Executive Magistrate, who passed an order for appointing the receiver to manage the property.

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2.10. The Purchaser Hulugappa questioned the said order in terms of the order passed in Criminal Petition No.1717/1988 and 1707/1988, the purchaser was ordered to be put in possession of the property. The said proceeding did not decide the rights of the parties as it originated

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from a proceeding under Section 145 of the Criminal Procedure Code.

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2.11. Challenging the order passed in the Criminal Petition Nos.1707 and 1717 of 1988, a Special Leave Petition was filed before the Hon’ble Apex Court and the said proceeding came to an end in the year 2001 dismissing the Special Leave Petition.

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2.12. Thereafter, the present suit is filed in O.S.No.34/2006, wherein the plaintiff sought for the relief of declaration of title and possession. The defendants appeared in the said suit.

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2.13. It is also relevant to note that, the original vendors died by the time the second suit was filed. The legal representatives of the original vendors filed a suit against the legal representatives of the original purchaser

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Hulugappa, who had also passed away by that time.

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2.14. In the said suit, the defendants pleaded that, they have become owners of the suit property by adverse possession and prayed for dismissal of the suit.

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2.15. The Trial Court framed issue No.13 on the plea of limitation and issue No.11(a) on the plea of adverse possession. Both issues were answered against the defendants.

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2.16. The Trial Court has held that the plaintiffs are the owners. The Trial Court also held that the agreement for sale was proved and that the purchaser Hulugappa was put in possession of the property under the agreement. The Trial Court also held that the purchasers had surrendered the possession of the property in the year 1973 in favour of the plaintiffs.

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2.17. The Trial Court also answered the issues framed with reference to Section 27 read with Article 65 of the Limitation Act against the defendants and accordingly, the suit was decreed.

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2.18. Aggrieved by the aforementioned judgment and decree, the defendants are in appeal.

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Learned counsel Sri.Anand Kolli, appearing for the appellants/defendants would urge that, purchaser Hulugappa came in possession of the property in the year 1957 pursuant to the agreement for sale dated 01.07.1957 and since then he was in continuous possession of the property till his death. After his death, present appellants are in possession of the suit property to the knowledge of the plaintiffs. The suit is not filed within 12 years from the date of dispossession of the plaintiffs in 1973, as such, the suit is time-barred and the defendants have perfected their title through adverse possession, and

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their possession being continuous, open, and hostile to the interest of the plaintiffs, the Trial Court committed an error in holding that the suit is in time. Since the defendants perfected their title by way of adverse possession, the suit could not have been decreed in favour of the plaintiffs.

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Learned counsel appearing for the plaintiffs/respondents would urge that the suit for possession based on title cannot be dismissed unless the defendants establish the plea of adverse possession. The adverse possession is established, as their possession is permissive under the agreement for sale dated 17.05.1957 and ingredients of adverse possession are missing both in the written statement as well as in the evidence.

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The defendant in the written statement in O.S.No.34/1976 has pleaded that he is ready and willing to perform his part of contract. Thus the defendant admits the lawful ownership of the

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plaintiffs and the said contention runs contrary to the plea of adverse possession. All along since 1973, till today, the parties are litigating before one or the other forum. Hence, the plea of adverse possession cannot be considered post 1973.

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The plea of adverse possession is not pleaded before 1973, as such, any amount of evidence relating to adverse possession after 1973 cannot be accepted as the evidence relating to adverse possession because of pending litigation. Thus, he prayed for dismissal of the appeal.

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This Court has considered the contentions raised at the Bar and perused the records. The following points would arise for consideration:

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i. Whether the appellants establish that they have perfected the title over the suit property by way of adverse possession and as such, suit is not maintainable?

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ii. Whether the suit is time-barred?

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As seen from the records, initially O.S.No.61/1973 was filed by the vendors, alleging that the vendors were dispossessed by Hulugappa the present appellants’ predecessor. It is stated in the said plaint that the Hulugappa dispossessed the vendors in the year 1973. The said suit was contested in various forums and ultimately came to be dismissed for nonprosecution.

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It is also noticed that a proceeding was initiated under Section 145 of the Criminal Procedure Code, wherein an interim custody of the property was given to the purchaser. That dispute ultimately came to an end in 2001 when the Special Leave Petition filed by the vendor’s successors was dismissed. Then, in the year 2006, the present suit is filed. It is relevant to note that in the proceeding which came to an end in view of dismissal of Special Leave Petition arising from the order in Criminal Petitions 1707 and 1717 of 1988, which were disposed of on 25.11.1998, the

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rights of the parties over the property were not adjudicated.

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What is clearly noticed from the records is, from 1973 till 2001, the parties have been prosecuting various cases before various forums. Thus, the period from 1973 to 2001 cannot be construed as a period where the present appellants were exercising their right to the property as persons in hostile possession, so as to treat that possession as adverse possession and to confer the title in favor of the defendants.

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The defendants in this suit can succeed only if they are able to establish adverse possession before 1973, when the suit was filed against the purchaser/agreement holder seeking recovery of possession. This is so because Article 65 of the Limitation Act is very clear. The limitation to file a suit for possession based on title is 12 years from the date when the possession becomes adverse.

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It is not the case of the defendants that their father Hulugappa who came in possession of the property in the year 1957 under agreement to purchase was in adverse possession of the property from 1957. Though the agreement holder Hulugappa came into possession of the property in 1957, said possession was under an agreement for sale and such possession was permissive. More importantly, in the year 1973, when the suit was filed, the defendant Hulugappa filed written statement in the said suit and though he pleaded that he is in possession of the property and had perfected the title through adverse possession, in the very same written statement, he contended that he is ready to pay the balance consideration amount to the plaintiff to purchase the property. This plea of the defendant, where he expressed his intention to purchase the property, defeats his very claim relating to adverse possession.

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Again, it is noticed that the parties are litigating in different Forums from 1973 up to 2001. This being the position, the suit filed in the year 2006 is not barred by limitation and is well within time as the title of the plaintiffs is not lost by prescription contained in Section 27 read with Article 65 of the Limitation Act.

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The entire burden of proving the adverse possession is on defendants. The suit for possession based on title cannot be dismissed unless the defendant is able to establish adverse possession is the law on the point. The defendants have failed to establish the plea of adverse possession as it is not their case that the adverse possession commenced and title was perfected before 1973 when the suit was initiated against Hulugappa.

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For the aforementioned reasons, there is no merit in the appeal, and accordingly, the appeal is dismissed.

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It is also noticed that the plaintiff has not sought the relief of mesne profits. However, before this Court, he has filed an application seeking direction against the appellants to deposit certain amount towards the profits accrued from the suit property. Pursuant to the said order, every year the appellants have been depositing an amount of ₹2,00,000/- before the executing Court where the execution petition is pending.

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The learned counsel for the respondents on instructions would submit that in case the possession is handed over to the respondents before 31.12.2024, the plaintiffs will not claim mesne profits and entire amount deposited before Executing Court be released in favour of appellants. Said submission is placed on record.

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In case the possession of the property is delivered to plaintiffs before 31.12.2024, the appellants are entitled to the amount deposited before the

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Executing Court. If possession is not handed over before 31.12.2024, the respondents will be entitled to mesne profits from the date of the suit till the date of delivery of possession, for which there has to be an enquiry to determine the quantum of mesne profits payable.

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With these observations the appeal is dismissed.

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Sd/(ANANT RAMANATH HEGDE)

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JUDGE

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GVP/gab CT:ANB List No.: 1 Sl No.: 31 .

Smt Huligemma v. Abdulrasid

Case brief

What is this about?

What the court decided

Smt Huligemma v. Abdulrasid

Case brief

What is this about?

What the court decided

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