Roopaleppa S/O Bhimappa Lamani Vs Smt. Vasuda @ Vasundhara W/O Vasant Joshi

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NC: 2025:KHC-D:8820-DB RFA No. 100218 of 2018 C/W RFA No. 100213 of 2018 RFA No. 100214 of 2018

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 16^TH DAY OF JULY, 2025

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PRESENT

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THE HON'BLE MR. JUSTICE R.NATARAJ AND

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THE HON'BLE MR. JUSTICE RAJESH RAI K

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REGULAR FIRST APPEAL NO.100218 OF 2018 (SP) C/W REGULAR FIRST APPEAL NO.100213 OF 2018 (DEC/INJ), REGULAR FIRST APPEAL NO.100214 OF 2018 (DEC/INJ)

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IN RFA NO.100218/2018:

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BETWEEN:

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ROOPALEPPA S/O. BHIMAPPA LAMANI, AGE: 57 YEARS, OCC. AGRICULTURE, R/O. DADIBHAVI TANDA, TQ. RAMDURG, DIST. BELAGAVI-591123.

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…APPELLANT

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(BY SRI. S. BASAVARAJ, SENIOR COUNSEL FOR SRI. M.H. PATIL AND SRI. HARSHAWARDHAN M. PATIL, ADVOCATES)

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Digitally signed by SUMA Location: HIGH COURT OF KARNATAKA

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AND:

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SMT. VASUDA @ VASUNDHARA W/O. VASANT JOSHI, AGE: 58 YEARS, OCC. HOUSEHOLD WORK, R/O. TRIMURTHI APARTMENT, MAHARSHI ROAD, TILAKWADI, BELAGAVI-590006.

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SRI. FAKIRAPPA S/O. HUCAHAPPA SAJJAN, AGE: 54 YEARS, OCC. AGRICULTURE, R/O. NAVIPETH RAMDURG, TQ. RAMDURG, DIST. BELAGAVI-591123.

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SRI. ASHOK S/O. HUCAHAPPA SAJJAN, AGE: 52 YEARS, OCC. AGRICULTURE, R/O. NAVIPETH RAMDURG, TQ. RAMDURG, DIST. BELAGAVI-591123.

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…RESPONDENTS

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HC-KAR

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(SRI. SANTOSH B. RAWOOT, ADVOCATE FOR R2 AND R3; R1-NOTICE SERVED)

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THIS RFA IS FILED UNDER SECTION 96 OF CPC., PRAYING TO SET ASIDE THE JUDGMENT AND DECREE PASSED ON 09.03.2018 BY SENIOR CIVIL JUDGE RAMDURG AT RAMDURG IN OS.NO.17/2012 BY DECREEING THE SUIT OF THE PLAINTIFF AS PRAYED FOR BY ALLOWING THIS APPEAL, IN THE ENDS OF JUSTICE AND EQUITY.

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IN RFA NO.100213/2018:

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BETWEEN:

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SHRI MALLAPPA PAWADEPPA KARADIGUDD AGE: 76 YEARS, OCC. AGRICUTURE, R/O. OBALAPUR, TAL. RAMDURG, DIST. BELAGAVI.

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SHRI BASAPPA PAWADEPPA KARADIGUDDI AGE: 51 YEARS, OCC. AGRICULTURE, R/O. OBALAPUR, TAL. RAMDURG, DIST. BELAGAVI.

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…APPELLANTS

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(BY SRI. AVINASH BANAKAR, ADVOCATE)

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AND:

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SMT. VASUDHA W/O. VASANT JOSHI, AGE: 61 YEARS. OCC. AGRICULTURE, R/O. C/O. SHRI V.B. JOSHI, PLOT NO. ¾, TRIMURTHI APARTMENT, MAHARSHI ROAD, TILAKWADI, BELAGAVI.

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SRI. FAKIRAPPA S/O. HUCAHAPPA SAJJAN, AGE: 54 YEARS, OCC. AGRICULTURE, R/O. NAVIPETH RAMDURG, TQ. RAMDURG, DIST. BELAGAVI.

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SHRI ASHOK S/O. HUCHHAPPA SAJJAN, AGE: 48 YEARS, OCC. AGRICULTURE, R/O. NAVIPETH, RAMDURG, TAL. RAMDURG, DIST. BELAGAVI.

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…RESPONDENTS

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(SRI. SHIVARAJ BALLOLI, ADVOCATE FOR R2 AND R3; R1-NOTICE SERVED)

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HC-KAR

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THIS RFA IS FILED UNDER SECTION 96 READ WITH UNDER ORDER 41 RULE 1 OF CPC., PRAYING THAT THE JUDGMENT AND DECREE PASSED BY THE SENIOR CIVIL JUDGE, RAMDURG IN O.S.NO.6/2012 DATED 09.03.2018 MAY KINDLY BE SET ASIDE AND THE SUIT OF THE PLAINTIFF MAY KINDLY BE DECREED BY HOLDING THAT THE PLAINTIFFS HAVE PERFECTED THEIR TITLE OVER THE SUIT PROPERTY AGAINST THE DEFENDANTS NO.1 AND THEIR PREDECESSORS IN TITLE, IN THE INTEREST OF JUSTICE.

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IN RFA NO.100214/2018:

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BETWEEN:

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SHRI SANNATAMAPPA PAWADEPPA KARADIGUDD AGE: 65 YEARS, OCC. AGRICULTURE, R/O. OBALAPUR, TAL. RAMDURG, DIST. BELAGAVI.

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SMT. LAKSHAMAPPA MALLAPPA KARADIGUDD SINCE DECEASED BY HIS LRS.,

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2A. SMT. GANGAWWA W/O. LAKSHMAPPA KARADIGUDD, AGE: 65 YEARS, OCC. AGRICULTURE, R/O. OBALAPUR, TAL. RAMDURG, DIST. BELAGAVI.

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2B. SHRI HANMANT S/O. LAKSHMAPPA KARADIGUDD, AGE: 44 YEARS, OCC. AGRICULTURE, R/O. OBALAPUR, TAL. RAMDURG, DIST. BELAGAVI.

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…APPELLANTS

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(BY SRI. AVINASH BANAKAR, ADVOCATE)

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AND:

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SMT. VASUDHA W/O. VASANT JOSHI, AGE: 61 YEARS, OCC. AGRICULTURE, R/O. C/O. SHRI V.B. JOSHI, PLOT NO. ¾, TRIMURTHI APARTMENT, MAHARSHI ROAD, TILAKWADI, BELAGAVI.

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SHRI ASHOK S/O. HUCAHAPPA SAJJAN, AGE: 48 YEARS, OCC. AGRICULTURE, R/O. NAVIPETH, RAMDURG, TAL. RAMDURG, DIST. BELAGAVI.

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…RESPONDENTS

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(SRI. SANTOSH B. RAWOOT, ADVOCATE FOR R2; R1-NOTICE SERVED)

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HC-KAR

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THIS RFA IS FILED UNDER SECTION 96 READ WITH UNDER ORDER 41 RULE 1 OF CPC., PRAYING THAT THE JUDGMENT AND DECREE PASSED BY THE SENIOR CIVIL JUDGE, RAMDURG IN O.S.NO.5/2016 DATED 09.03.2018 MAY KINDLY BE SET ASIDE AND THE SUIT OF THE PLAINTIFF MAY KINDLY BE DECREED BY HOLDING THAT THE PLAINTIFFS HAVE PERFECTED THEIR TITLE OVER THE SUIT PROPERTY AGAINST THE DEFENDANT NO.1 AND THEIR PREDECESSORS IN TITLE, IN THE INTEREST OF JUSTICE.

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THESE APPEALS, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE R.NATARAJ AND

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THE HON'BLE MR. JUSTICE RAJESH RAI K

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE R.NATARAJ)

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The plaintiff in O.S.No.17/2012 on the file of the Senior Civil Judge, Ramadurg, has filed RFA No.100218/2018 assailing the judgment and decree dated 09.03.2018 by which the suit filed by him for specific performance was dismissed.

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The plaintiffs in O.S.No.6/2012 on the file of the Senior Civil Judge, Ramadurg, have filed RFA No.100213/2018 assailing the judgment and decree 09.03.2018, by which the suit filed by them for declaration of title by way of adverse possession was dismissed.

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The plaintiffs in O.S.No.5/2012 on the file of the Senior Civil Judge, Ramadurg, have filed RFA No.100214/2018

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assailing the judgment and decree 09.03.2018, by which the suit filed by them for declaration that they have perfected their title by way of adverse possession was dismissed.

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The parties shall henceforth be referred to as they were arrayed in the suits filed.

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THE FACTS AS PLEADED IN O.S.NO.17/2012:

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The suit in O.S.No.17/2012 was filed for specific performance of an agreement of sale dated 01.10.2011 whereby the defendant No.1 had purportedly agreed to sell the suit properties bearing RS No.153 and 154 to the plaintiff for a total sale consideration of Rs.95,50,000/- and had received a sum of Rs.65,50,000/- as part of the agreed sale consideration. It was stated that the defendant No.1 was the owner of the suit properties but was a permanent resident of Tilakawadi, Belagavi. It was claimed that the defendant No.1 was unable to cultivate the suit properties and thus, intended to sell them. The plaintiff was purportedly interested to purchase the suit properties. Accordingly, the plaintiff, defendant No.1 and her husband and some elders of the village gathered in the first week of August, 2011 and negotiated the terms of the sale. At

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the said meeting, the defendant No.1 offered to sell the suit properties for Rs.95,50,000/-, which was accepted by the plaintiff and accordingly, on 01.10.2011 the terms of agreement were reduced into writing and the plaintiff purportedly paid Rs.65,50,000/- on the same day in the presence of her husband and attesting witnesses. The plaintiff claimed that he was always ready and willing to perform his part of contract as per the terms set out in the agreement of sale and he had kept ready the balance sum of Rs.30,00,000/-. He claimed that in the last week of December 2011, he approached the defendant No.1 and requested her to perform her part of contract. The defendant No.1 and her husband assured the plaintiff that after the name of defendant No.1 is entered in the property extract of the suit house and open site, a sale deed would be executed within three months. The plaintiff claimed that, therefore, he waited for three months and again in the first week of April, 2012 he and some elders of the village approached the defendant No.1 and requested her to conclude the sale transaction by receiving balance sale consideration. However, the defendant No.1 went on postponing the execution of the registered sale deed on one or

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the other reason and sought for further time of two months to

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execute the sale deed.

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The plaintiff waited for transfer of the name of defendant No.1 in the property extract of the house and open space. However, in the last week of May-2012 he came to know about rumors that defendant No.1 had executed a sale deeds in respect of the suit lands in favour of defendants No.2 and 3. The plaintiff, therefore, tried to reach the defendant No.1 to know about the rumors. However, the defendant No.1 was not available in her house at Belagavi. The plaintiff, thereafter, obtained documents from the office of the Sub-Registrar and found that the defendant No.1 had executed a sale deed in favour of defendants No.2 and 3 on 15.02.2012. He also contended that a nominal consideration was mentioned in the sale deed, which made it clear that the conveyance was not real and therefore, contended that the sale deeds were brought about to deny the valuable right of the plaintiff in the suit properties. Hence, the plaintiff sought for specific performance of agreement of sale and also sought for alternate relief of refund of earnest money along with interest @ 18% per annum

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and damages of Rs.80,00,000/- and to declare that the sale deed dated 15.02.2012 executed by the defendant No.1 in favour of defendants No.2 and 3 as not binding on him.

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(i) The suit was contested by the defendants No.2 and 3, who claimed that they had purchased the suit properties from the defendant No.1 in terms of the sale deed dated 15.02.2012. They contended that there was another suit filed by Sannatammappa Pawadeppa Karadigudda and Laxmappa Mallappa Karadigudda in O.S.No.5/2015 against the defendants in respect of the land bearing Survey No.153. Similarly, Mallappa Pawadeppa Karadigudda and Bassappa Pawadeppa Karadigudda had filed O.S.No.6/2012 against them in respect of the land bearing Survey No.154 of Soppadla village. They contended that defendant No.1 along with her two daughters and son entered into an agreement with defendant No.3 to sell the Survey No.153 in favour of defendant No.3. Following this, a sale deed was executed by the defendant No.1 and her children in favour of defendant No.3 which was duly registered before the Sub-Registrar on 15.02.2012. They claimed that the defendant No.3 was put in possession and

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enjoyment of the same. They also contended that the defendant No.1 along with her children had executed a sale deed in favour of defendants No.2 and 3 in respect of the land bearing Survey No.154 and placed them in possession of the said property. They claimed that the plaintiff had created a false agreement of sale dated 01.10.2011, which came to their knowledge only after he filed the suit for specific performance.

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They denied that the defendant No.1 had executed such an agreement in favour of the plaintiff. They also denied that the defendant No.1 had received a sum of Rs.65,50,000/from the plaintiff as stated in the agreement of sale. They categorically contended that the defendant No.1 did not enter into any agreement of sale agreeing to convey the aforesaid properties in favour of the plaintiff. Therefore, they contended that the question of defendant No.1 receiving a sum of Rs.65,50,000/- from the plaintiff and failing to conclude the sale transaction did not arise.

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The defendant No.1 filed a memo adopting the

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written statement filed by the defendants No.2 and 3.

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Based on these contentions, the trial Court framed

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the following issues:

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“1) Whether the plaintiff proves that, 1st defendant agreed to sell the suit properties to the plaintiff for Rs.95,50,000/- and received advance amount of Rs.65,50,000/- from the plaintiff on 01.10.20111 and executed a sale agreement in favour of the plaintiff?

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2) Whether the plaintiff further proves that, 1st defendant agreed to execute a registered sale deed in favour of plaintiff in respect of suit properties on receipt of balance consideration of rs.30,00,000/-?

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3) Whether plaintiff further proves that, the registered sale deeds executed by 1st defendant in favour of defendants No.2 & 3 on 15.02.2012 are not valid and not binding on plaintiff?

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4) Whether defendant No.2 and 3 proves that, they are bonafide purchasers of suit properties and they are in actual possession and enjoyment of the same?

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5) Whether plaintiff further proves that, he is entitled for the relief of specific performance of contract dated 01.10.2011?

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6) Whether plaintiff further proves that, he is entitled for an alternative relief of refund of earnest money

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with interest at the rate of 18% p.a. and damages of Rs.80,00,000/-?

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7) What order or decree?

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: Additional issue :

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Whether the plaintiff proves that, he is ever ready and willing to perform his part of contract?”

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The plaintiff was examined as PW.1. He marked Exs.P.1 to P.29. He examined a Mediator who allegedly brought about the transaction between the plaintiff and defendant No.1 as PW.2 and an attesting witness to the agreement of sale as PW.3 and Scribe of the agreement of sale as PW.4. On the other hand, the defendant No.1 was examined as DW.1 and defendant No.3 was examined as DW.2. DW.2 marked Exs.D.1 and D.2.

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The trial Court after considering the oral and documentary evidence adduced before it, held that the plaintiff had failed to prove the lawful execution of agreement of sale and consequently held that the question of readiness and willingness of the plaintiff to perform his part of the contract did not arise. It also held that since the plaintiff failed to prove the lawful execution of agreement of sale, he was not entitled for

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refund of the earnest money paid allegedly under the agreement. Consequently, it dismissed the suit in terms of the judgment and decree dated 09.03.2018.

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Being aggrieved by the said judgment and decree, the plaintiff is before this Court in RFA.No.100218/2018.

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The facts as pleaded in O.S.No.5/2012 :

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The suit in O.S.No.5/2012 was filed for declaration that the plaintiffs had perfected their title to the suit property by adverse possession. The suit property was agricultural land bearing Sy.No.153 of Soppadla village. It was the case of the plaintiffs that the suit property was owned by Ramchandra Govind Kulkarni and after his death his wife Smt.Janakibai Ramchandra Kukarni succeeded to the property. She executed a sale deed in respect of the suit property in favour of her relative Sri.Venkatesh Hukkeri in the year 1972-73. After the death of Mr.Hukkeri, the name of his wife Smt.Shanthabai was entered in the revenue records. After the death of Smt.Shanthabai, the name of her daughter Smt.Vasuda (defendant No.1) was entered in the revenue records. The plaintiffs claimed that though Mr.Ramchandra Govind Kulkarni

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was the owner, he never visited the suit property and never attended to the land. The plaintiff No.1 had purchased the land bearing Sy.No.5 situate adjacent to the suit property from Ramchandra Govind Kulkarni on 20.05.1963. He claimed that when he took possession of the Sy.No.5, he also took possession of Sy.No.153 along with his brother Basappa and started cultivating the same as Sy.No.153 lay adjacent to Sy.No.5. The plaintiffs claimed that Ramchandra Govind Kulkarni knew about the unauthorized cultivation of the suit property by the plaintiffs but never objected till his death. They claimed that Ramchandra Govind Kulkarni and his wife were not in good terms and in order to avoid payment of maintenance, Mr.Ramchandra Govind Kulkarni submitted a Varadi that he had given suit land to her towards her maintenance. They claimed that the suit property continued in their possession even after the death of Mr.Ramchandra Govind Kulkarni and after the name of his wife was entered in revenue records. They contended that after the sale of property by Smt.Janakibai in favour of Mr.Hukkeri, he too did not come into possession of the suit property as he was not a resident of Obalpur but was an employee working in Ramdurg and other

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places. The said Mr.Hukkeri died on 01.12.1984 and after his death too, his legal heirs namely Shantabai and the defendant No.1 did not visit the suit property and did not question the plaintiffs being in possession. They contended that their possession was known to the world at large and they were cultivating dry crops in the suit property. Thus, they contended that their possession in the suit property was adverse to the interest of the defendant No.1 and the defendant No.1 had allowed grass to grow under the feet of the plaintiffs for over 12 years and hence, they perfected their title to suit property by adverse possession.

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The suit was contested by the defendants No.1 and 2 who denied the claim of the plaintiffs that they were in adverse possession of the suit property. On the contrary, they contended that they were in possession of the suit property and that the defendant No.1 had conveyed the suit property to the defendant No.2 on 15.02.2012 and handed over possession to the defendant No.2. They therefore contended that it was the defendant No.2 who was the lawful owner of the suit property.

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Based on these contentions, the trial Court framed the following issues:

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“1) Whether plaintiffs prove that, they are in peaceful and continuous possession of suit properties for more than last 49 years?

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2) Whether plaintiffs further prove that, they have perfected their title by way of adverse possession?

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3) Whether the 1st defendant proves that, she is absolute owner and she is in possession and enjoyment of the suit schedule properties along with her two daughters?

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4) Whether defendant No.2 proves that, he is the bonafide purchaser of the suit properties from the defendant No.1 and from her daughters and he is in peaceful possession and enjoyment of the suit schedule properties?

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5) Whether plaintiffs are entitled for the relief so sought for?

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6) What order or decree?”

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The plaintiff No.2 was examined as PW.1 and he

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marked Exs.P.1 to P.34. He also examined two witnesses as PW.2 and PW.3. The defendant No.1 was examined as DW.1

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and he marked Exs.D.1 to D.8, while the defendant No.2 was examined as DW.2.

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Based on the oral and documentary evidence, the trial Court held that the plaintiffs had failed to prove that they were in adverse possession of the suit schedule property to the knowledge of defendant No.1. It also held that the plaintiffs had failed to acknowledge the ownership of the defendant No.1 which was the basic ingredient for claiming the relief of adverse possession. Consequently, it dismissed the suit in terms of the judgment and decree dated 09.03.2018.

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Being aggrieved by the said judgment and decree, RFA.No.100214/2018 is filed.

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The facts as pleaded in O.S.No.6/2012:

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The suit in O.S.No.6/2012 was filed for declaration that the plaintiffs had perfected their title by adverse possession and consequently to declare the sale deed dated 15.02.2012 executed by the defendant No.1 in favour of the defendants No.2 and 3 in respect of the suit property as not binding upon the plaintiffs. The plaintiffs claimed that the suit property measured 30 acres 13 guntas in Sy.No.154 situate at

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Soppadla Village. They claimed that the suit property was owned by Ramchandra Govind Kulkarni and after his death it was succeeded by his wife Smt.Janakibai who conveyed the same in favour of Mr.Venkatesh Hukkeri during the year 197273. After the death of Venkatesh Hukkeri, the name of his wife Smt.Shantabai was entered in the revenue records. After the death of Smt.Shantabai, the name of the defendant No.1 was entered in the revenue records. They contended that though Ramchandra Govind Kulkarni was the owner of the suit land, he never visited the land and never attended to it. The plaintiff No.1 had purchased the land bearing Sy.No.5 situate adjacent to the suit property from Ramchandra Govind Kulkarni on 20.05.1963. They contended that when they took possession of Sy.No.5 from Ramchandra Govind Kulkarni, the plaintiff No.1 and the father of plaintiff No.2 started cultivating the suit property. The said Mr.Ramchandra Govind Kulkarni was not a resident of the village and as such, the plaintiffs were cultivating the suit property. They claimed that Ramchandra Govind Kulkarni knew about their unauthorized cultivation of the suit property but he never objected the same till his death. They claimed that Ramchandra Govind Kulkarni and his wife

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were not in good terms and in order to avoid payment of maintenance to his wife, Mr.Ramchandra Govind Kulkarni submitted a Varadi to the revenue authorities that he had given the suit property towards maintenance of his wife. They contended that the property was never in the possession of Mr.Ramchandra Govind Kulkarni or his wife, but was in their possession. They claimed that Smt.Janakibai had created a sale deed in favour of Mr.Hukkeri, who also did not come in possession of the suit property as he was not a resident of Obalpur but was working in Ramdurg and other places. The said Mr.Hukkeri died on 01.12.1984 after which the name of his wife Smt.Shantabai and defendant No.1 was entered in the revenue records and after the death of Smt.Shantabai, the name of the defendant No.1 alone was continued in the revenue records. They claimed that they were always in possession of the suit property from the year 1963 unauthorizedly and to the knowledge of Mr.Ramchandra Govind Kulkarni and his successors. They contended that they had continued for more than the prescriptive period without interruption and their hostile possession was known to the defendant No.1 and her predecessors but did not take any

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steps for recovery of possession. Therefore, they contended that they had perfected their title to the suit property by adverse possession.

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Defendants contested the suit and filed their written statement inter alia contending that the defendant No.1 was the lawful owner of the suit property and that she had for consideration conveyed the suit property to the defendants No.2 and 3 and had placed them in possession of the suit property. They also contended that the plaintiffs were never in unauthorized possession of the suit property and consequently, they did not acquire any title by prescription. They also denied that the plaintiffs were in possession of the suit property but contended that they had made a false claim to the suit property so as to ensure that the suit property is mired in litigation.

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Based on these contentions, the trial Court framed the following issues:

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“1) Whether plaintiffs prove that, they are in peaceful and continuous possession properties for more than last 49 years?

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2) Whether plaintiffs further prove that, they have perfected their title by way of adverse possession?

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3) Whether the 1st defendant proves that, she is absolute owner and she is in possession and enjoyment of suit properties along with her two daughters?

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4) Whether defendant No.2 and 3 prove that, they are bonafide purchasers from the D-1 and from her daughters and they are in peaceful possession and enjoyment of the suit properties?

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5) Whether plaintiffs prove that, they are entitled for the reliefs, so sought for?

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6) What order or decree?”

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The plaintiff No.1 was examined as PW.1 and he

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marked Exs.P.1 to P.35. He also examined two witnesses as PW.2 and PW.3. The defendant No.3 was examined as DW.1 and he marked Exs.D.1 to D.8. The defendant No.1 was examined as DW.2.

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Based on the oral and documentary evidence, the trial Court held that the plaintiffs had failed to prove the necessary ingredients to establish that they had perfected their title to the suit property by adverse possession. It also held that the plaintiffs failed to acknowledge the ownership of the defendant No.1. It also held that the plaintiffs failed to prove

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that they were in adverse possession of the suit property and consequently, held that the plaintiffs are not entitled to any reliefs and hence, dismissed the suit in terms of the judgment and decree dated 09.03.2018.

¶170

Being aggrieved by the said judgment and decree, the plaintiffs have filed RFA.No.100213/2018.

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Submissions of the learned Senior Counsel for the

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appellant in RFA.No.100218/2018:

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(i) Sri. S.Basavaraj, learned Senior Counsel contended that the defendant No.1 who had executed the agreement of sale in favour of the plaintiff, did not file written statement, on the contrary, she adopted the written statement filed by the defendants No.2 and 3. He contended that the defendants No.2 and 3 were not parties to the agreement of sale and therefore had no knowledge about the execution of the sale agreement. He therefore contends that the trial Court ought to have proceeded on the premise that there was no written statement filed by the defendant No.1 denying the execution of the agreement of sale. He contends that the

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defendant No.1 ought to have come out clean about the execution of the sale agreement by specifically denying the execution of the sale agreement. The learned Senior Counsel relied upon Order VIII Rule Rule 4 of CPC to contend that every fact if not denied, should be construed as having been admitted. He therefore contends that when the agreement in question was not seriously disputed by the defendant No.1, the trial Court ought not to have ventured out to hold that the agreement of sale was not executed by the defendant No.1. He further contends that the signatures of the defendant No.1 on the agreement of sale corresponds to her signatures found in proceedings. He contends that this Court may exercise discretion under Section 73 of the Indian Evidence Act and compare the signatures of defendant No.1 found on the agreement of sale with her admitted signature in the memo filed adopting the written statement filed by defendant Nos.2 and 3.

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(ii) Besides this, he contends that the plaintiff had done everything that he could do to establish the lawful execution of the agreement of sale. He contends that the evidence of PW.2

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and PW.3 established the execution of the agreement of sale and the receipt of a sum of Rs.65,50,000/- by the defendant No.1. He therefore contends that the trial Court committed an error in rejecting the evidence of PW.2 and PW.3. He also submitted that PW.4 was the scribe who drew up the agreement of sale and he categorically deposed that it was defendant No.1 who executed the agreement of sale in favour of the plaintiff and that he drew up the agreement of sale. PW.4 identified his signatures on the agreement of sale and therefore, the plaintiff had successfully established the lawful execution of the agreement of sale. Therefore, he contends that the trial Court committed an error in holding that the plaintiff did not prove the lawful execution of the sale agreement. He contends that since the plaintiff had paid a substantial portion of consideration, the trial Court ought to have exercised discretion vested in it under Section 20 of the Specific Relief Act and must have directed specific performance of the agreement of sale.

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(iii) He contends that the trial Court did not answer additional issue No.1 but held that the issue does not arise for

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consideration. The leaned Senior Counsel referred to Order XX Rule 5 of CPC and contended that the Court is bound to give its findings on all issues framed in the suit. He therefore contends that the impugned judgment and decree passed by the trial Court warrants interference.

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(iv) He also submits that the defendants No.2 and 3 did not claim that they were bonafide purchasers for value without notice of agreement of sale in favour of the plaintiff. He contends that the defence available to the defendants No.2 and 3 is only to the limited extent of challenging the readiness and willingness on the part of the plaintiff and does not extend to challenging the lawful execution of the agreement of sale. He submits that since the defendants No.2 and 3 have not claimed that they are bonafide purchasers, the trial Court should not have ventured to give credence to the evidence of the defendants No.2 and 3. In support of his contention, he relied upon the judgment of the Hon’ble Apex Court in the case of Manjith Singh and Another vs. Darshana Devi and Others in Civil Appeal No.13066/2024 .

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Per contra , the learned counsel for the defendants/respondents submitted that the appellant miserably failed to prove the lawful execution of the sale agreement. He contends that the appellant also failed to prove the payment of Rs.65,50,000/- to the defendant No.1. He contends that the appellant in his evidence had deposed that he had paid a sum of Rs.65,50,000/- to one Mr.Shivappa S Karadigudda and that the said Mr. Shivappa S Karadigudda had paid the consideration to the defendant No.1. He contends that the plaintiff took no steps to examine the said Mr. Shivappa S Karadigudda. He submitted that the appellant had initially deposed that he had paid a sum of Rs.65,50,000/- which was the income generated from his land. He contends that though PW.1 claimed that they were selling sugarcane to the factories at Thorgal and Munavalli, the plaintiff did not produce any documents to establish the same. He submitted that in another breath, PW.1 claimed that he had taken a sum of Rs.50,00,000/- from the in-laws of his children. He therefore contends that the plaintiff was not sure as to how he had gathered a sum of Rs.65,50,000/- to pay to the defendant No.1. He contends that the witnesses to the agreement were all

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related to the plaintiff in O.S. Nos.5 and 6 of 2012. He contends that the plaintiff had set up the relatives of the witnesses to the agreement to file O.S.Nos.5 and 6 of 2012 as an alternative means to keep the litigation alive in case the suit filed by him for specific performance was not entertained. He also contends that the plaintiff did not take any steps to get the signatures on the agreement of sale verified and compared with the signatures of defendant No.1 in the sale deed executed by defendants No.2 and 3 as well as the memo filed by her adopting the written statement of the defendants No.2 and 3. He also contends that the plaintiff did not produce any material to justify that they had any funds to pay the balance sale consideration and also to meet the expenses of registration. He further contends that under the agreement of sale, the balance consideration was to be paid at the time of registering the documents and conveying the suit property. He submitted that there was no impediment for the defendant No.1 to convey the suit property to the plaintiffs as the name of the defendant No.1 was already entered in the revenue records. He contends that the plaintiff did not call upon the defendant No.1 in writing to conclude her part of the contract. He therefore contends that

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this circumstance establishes that the agreement of sale was concocted by the plaintiff. He further contends that as per the evidence of PW.4, he had deputed the plaintiff and the defendant No.1 to get the document sheet franked in the office of the Sub-Registrar and thereafter he drew up the agreement of sale. However, in the evidence of PW.2, it was stated that after the document was drawn up, PW.4 advised the plaintiff and defendant No.1 to pay stamp duty. He therefore contends that the payment of stamp duty on the agreement of sale is therefore doubtful and the evidence of the PW.2 to PW.4 establishes that the plaintiff had concocted this document only to lay a false claim to the suit schedule property. He contends that the defendant No.1 had filed a memo adopting the written statement of the defendants No.2 and 3 wherein, it was specifically contended that defendant No.1 did not execute the agreement of sale and did not receive the sale consideration as alleged by the plaintiff. He contends that the defendants No.2 and 3 who stepped into the shoes of defendant No.1 were entitled to raise all contentions that the defendant No.1 was entitled to in law. In support of his contention, he relied upon the judgment of the Hon’ble Court in the case of RAM AWADH

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vs ACHHAIBAR DUBEY AND ANOTHER reported in (2000)

¶201

2 SCC 428 .

¶202

Besides this, he contends that defendant No.1 stepped into the witness box and no effort was made by the plaintiff to establish that the signatures found on the agreement of sale were affixed by the defendant No.1.

¶203

Submissions of the learned counsel for the appellants in

¶204

RFA.Nos.100213 and 100214 of 2018:

¶205

The learned counsel in both these appeals contended that the plaintiffs had pleaded that they were in unlawful possession of the suit properties, which was known to Mr.Ramchandra Govind Kulkarni. He contended that Ramchandra Govind Kulkarni was an absentee landlord and he had sold the land in Sy.No.5 which lay adjacent to the suit properties and that the plaintiffs of both the suits took advantage of the absence of Mr.Ramchandra Govind Kulkarni and were cultivating the suit properties. He contends that neither Mr.Ramchandra Govind Kulkarni nor his wife Janakibai nor Mr.Hukkeri, his wife and the defendant No.1 took any step to evict the plaintiffs from the suit schedule properties. He

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therefore contends that the plaintiffs have been in unlawful possession of the suit properties to the knowledge of the defendant No.1 and therefore, the plaintiffs are entitled for a declaration that they had perfected their title to the suit properties by adverse possession. He contends that the trial Court failed to appreciate the evidence of PWs.2 and 3 who deposed that the plaintiffs in both the suits were unauthorizedly cultivating the suit properties ever since from the year 1963. He therefore contends that the impugned judgment and decree passed by the trial Court be set at naught and the suit filed by them be decreed.

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Per contra , learned counsel for the respondents in both the appeals contended that the plaintiffs in the first place were bound to admit and acknowledge that the defendant No.1 and her predecessors were the owners of the suit properties and thereafter establish that the plaintiffs had entered possession unlawfully with the notice and knowledge of the defendant No.1 and her predecessors and continued in possession of the suit properties for the prescriptive period of 12 years. It is only then that a claim for adverse possession

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could be entertained by the trial Court. He contended that there is nothing on record to establish as to how and when the plaintiffs came in possession of the suit properties, when such possession became adverse, how the defendant No.1 and her predecessors had notice and knowledge of the alleged unauthorized possession of the plaintiffs in the suit schedule properties. He therefore contends that the plaintiffs miserably failed to establish the requisites for seeking for a declaration of title based on adverse possession as held by the Hon’ble Apex Court in the case of RAVINDER KAUR GREWAL vs. MANJIT KAUR reported in AIR 2019 SC 804 .

¶213

We have considered the submissions of the learned Senior Counsel for the appellant in RFA.No.100218/2018, learned counsel for the appellants in RFA.Nos.100213 and 100214 of 2018 and the learned counsel for the respondents. We have also perused the records of the trial Court as well as its judgment and decree.

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After careful perusal of the records, the following points arise for our consideration:

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(i) Whether the plaintiff in O.S.No.17/2012 had proved the lawful execution of the agreement of sale by the defendant No.1?

¶218

(ii) Whether the trial Court committed an error in not answering additional issue regarding readiness and willingness on the part of the plaintiff to perform his part of contract?

¶219

(iii) Whether the findings of the trial Court were perverse?

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(iv) Whether the appellants in RFA.Nos.100213 and 100214 of 2018 had proved that they had perfected their title by adverse possession?

¶221

(i) The suit in O.S. No.17/2012 was based on the

¶222

agreement of sale dated 01.10.2011. A bare perusal of this agreement shows that the name of the vendor was shown as Smt.Vasundara Vasantrao Joshi. The person who affixed her signature in the agreement of sale mentioned her name as Vasudha Vasantha Joshi. Under this agreement, the land bearing Sy. Nos.153 and 154 of Soppadla village measuring in all 47 acres 24 guntas was agreed to be conveyed for a total sale consideration of Rs.95,50,000/-. The agreement discloses that a sum of Rs.65,50,000/- was paid on the same day and

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the balance of Rs.30,00,000/- was to be paid on the date of execution and registration of the sale deed. It is also specifically mentioned in the agreement that the property was not the subject matter of any dispute before any Court of law. However, there was a reference that vendor had agreed to get a sketch of the property and also rectify any mistakes regarding the title. No time was stipulated for completion of the transaction. This agreement was purportedly drawn by PW.4 and attested by PW.3. The face sheet of the agreement shows that a sum of Rs.9,550/- was paid as a stamp duty, which was acknowledged by the concerned Sub-Registrar by franking on the said document. The defendant No.1 in the suit for specific performance was described as Vasuda @ Vasundara W/o. Vasant Joshi. The defendant No.1 had conveyed the suit property to the defendants No.2 and 3 in terms of the sale deeds, which are marked as Ex.D.1 and 2. A perusal of the sale deed shows that the name of the vendor was mentioned as Vasundara W/o. Vasantha Joshi. This creates a doubt about the genuinity of the agreement as there could not have been a let up in mentioning the correct name of defendant No.1 in the sale agreement.

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(ii) A perusal of the evidence of PW.1 regarding the execution of Ex.P.5 shows that the defendant No.1 had handed over the revenue documents of the suit properties to the plaintiff before the execution of the agreement of sale. He deposed that just prior to the execution of agreement of sale, the defendant No.1 along with her husband had come to Obalapura and met the plaintiff and that PW.2 and Kariyappa Lamani accompanied him. He claimed that on behalf of the defendant No.1, Mr.Shivappa S Karadigudda, Adiveppa Yallappa Dyamannavar, Vitthal Basappa Karadigudda, and Ramesh Karadigudda had accompanied her. He deposed that the sale negotiations went on up to 1 ‘O’ Clock and that no money was paid on the said day. However, he deposed that on the same day, the defendant No.1 agreed to sell the suit property along with a residential plot for a total sale consideration of Rs.95,50,000/-. He deposed that after verification of the revenue records, the name of Smt.Janakibai Ramchandra Kulkarni was found and the name of the defendant No.1 was yet to be entered. He later deposed that the defendant No.1 thereafter furnished documents to establish that her name was entered in the records. After two months from the date of

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finalisation of the terms of the sale, the plaintiff met the defendant No.1. He deposed that later he did not meet the defendant No.1 for nearly a year but met her after a year. He then deposed that after one year two months from the date of finalisation of the talks, he met the defendant No.1 at Ramdurga old bus-stand. He deposed that there was no talks between the plaintiff and the defendant No.1 at the bus-stand. After a year from that date, he met the defendant No.1 at Ramdurga. So this establishes that after two years and two months from the date of finalization of the terms, the sale agreement was drawn up, which is not the case as pleaded by the plaintiff.

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(iii) He claimed that he and the defendant No.1 along with witnesses went to Ramdurga and met PW.4. He deposed that he paid Rs.65,50,000/- to Shivappa S Karadigudda and that Shivappa S Karadigudda paid the said sum to the defendant No.1 and her husband at their house. Later, they came to Ramdurga and met PW.4 who collected the information and drew up the agreement of sale [Ex.P.5]. He deposed that no money was paid in the presence of PW.4.

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(iv) While on the one hand, PW.1 claimed that he had

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gathered a sum of Rs.65,50,000/- from out of the sale of sugarcane from his family held land but on the other claimed that a sum of Rs.50,00,000/- was taken from the in-laws of his children. Except these statements, there is no evidence to establish that a sum of Rs.65,50,000/- was paid to the defendant No.1. An effort was made by the plaintiff through PWs.2 and 3 to demonstrate that a sum of Rs.65,50,000/- was paid to the plaintiff just prior to the execution of the agreement of sale. However, in the absence of any material to show that the said money was handed over to Mr. Shivappa S Karadigudda and that the said Mr. Shivappa S Karadigudda handed over the money to defendant No.1, the evidence of PWs.2 and 3 is lacking and gives an impression that they have

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been planted in the case only for benefit of the plaintiff. The plaintiff was confronted with the written statement by the defendant Nos.2 and 3, wherein they claimed that plaintiff had not executed the agreement of sale. Therefore, they ought to have taken steps to establish that the signatures found on Ex.P.5 were that of defendant No.1. It appears from the evidence of DW.2 that the signatures found on Ex.P.5 was not

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even confronted to her. No efforts were made to drive home the fact that Ex.P.5 was executed by the defendant No.1. Besides this, the plaintiff did not establish as to when and how he made a claim with defendant No.1 for conclusion of the transaction. The very fact that the plaintiff did not cause any demand in writing calling upon the defendant No.1 to conclude the transaction gives an impression that Ex.P.5 was not executed by the defendant No.1. The trial Court was therefore justified in holding that the plaintiff had failed to prove the lawful execution of Ex.P.5. Therefore, we do not consider it appropriate to interfere with the said finding of the trial Court.

¶243

As regards the claim of the plaintiff that the trial Court ought to have considered that the defendant No.1 had not filed an effective written statement, it is relevant to note that the defendant No.1 had already conveyed the suit property to defendant Nos.2 and 3 and therefore, she had to make good the marketable title of defendant Nos.2 and 3. The defendant Nos.2 and 3 specifically claimed in the written statement that the defendant No.1 did not execute such agreement of sale in favour of the plaintiff and did not receive a sum of

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Rs.65,50,000/-. The defendant No.1 had adopted the written statement, thereby acknowledging that she subscribed to the claim that she had not executed the agreement of sale in favour of the plaintiff and had not received a sum of Rs.65,50,000/- from the plaintiff. The contention of the learned Senior counsel for the plaintiff that this was not an effective written statement and the trial Court should not have entertained doubt about the lawful execution of Ex.P.5, does not stand to reason as there was an effective written statement filed by the defendant No.1 denying the lawful execution of the agreement of sale in favour of the plaintiff. The contention that the written statement of defendant No.1 does not conform to Order VIII Rule 4 of CPC is raised only to be rejected.

¶247

As regards the claim of the learned Senior counsel for the plaintiff, the trial Court committed an error, in not answering all the issues framed, it is relevant to note that under Order XX Rule 5 of CPC, the Court is bound to answer all issues. There can be no exception to this position of law. However, in the instant case the plaintiff had failed to establish that the defendant No.1 had executed an agreement of sale in

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favour of the plaintiff agreeing to convey the suit property and the plaintiff had failed to establish that the defendant No.1 had received a sum of Rs.65,50,000/-. Therefore, nothing else remained to be answered including the issue, whether the plaintiff was ready and willing to perform his part of the contract. As a matter of fact, when we look into the evidence adduced before the trial Court, we found that except marking the agreement of sale and some revenue records and the proceedings of Court in PCR No.13/2012, OS Nos.05/2012 and 06/2012, the plaintiff did not produce any evidence to establish his readiness and willingness. An effort was made by the plaintiff to produce the documents before this Court, which are the revenue records of the lands belonging to his family. This at any rate cannot justify the claim of the plaintiff that he was ready and willing to perform his part of the contract, more particularly in the light of his deposition that out of Rs.65,50,000/-, he had raised Rs.50,00,000/- from his in-laws. Therefore, mere possessing certain lands itself does not indicate that the plaintiff was able to generate a sum of Rs.30,00,000/- to pay to the defendant No.1, assuming that Ex.P.5 was proved. In that circumstance, though the trial Court

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was required in law to answer the additional No.1, but, since the said question did not arise for the consideration, the trial Court was justified in holding that the additional issue No.1 did not arise for consideration. Therefore, we hold that the trial Court was justified on all grounds in dismissing the suit filed by the plaintiff and hence, the impugned judgment and decree passed by the trial Court does not warrant interference. Therefore, we answer the point Nos.(i) and (ii) framed by us accordingly.

¶256

In so far as the relief sought for in OS Nos.5 and 6 of 2012, a careful consideration of the plaint averments shows that though the plaintiff claimed that they were in unlawful possession of the suit property from the year 1963 when they purchased the land in Sy. No.5 from Mr.Ramchandra Kulkarni and though they claimed that the defendant No.1 and her predecessors had notice and knowledge, they have failed to prove the said requirements to claim title to the suit property by adverse possession. As rightly contended by the learned counsel for the respondents, the plaintiffs were bound to prove as to how and when they came into possession of the suit

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properties, when it became adverse and how it was known to defendant No.1 and her predecessors. As rightly observed by the trial Court, the plaintiff had failed to even acknowledge the ownership of defendant No.1 and her predecessors, which was the necessary requirement for claiming adverse possession. The Hon’ble Apex Court, in the case of Ravinder Kaur Grewal and others Vs. Manjit Kaur and others ( supra ) has held as under;

¶261

“50. Law of adverse possession does not qualify only a defendant for the acquisition of title by way of adverse possession, it may be perfected by a person who is filing a suit. It only restricts a right of the owner to recover possession before the period of limitation fixed for the extinction of his rights expires. Once right is extinguished another person acquires prescriptive right which cannot be defeated by re-entry by the owner or subsequent acknowledgment of his rights. In such a case suit can be filed by a person whose right is sought to be defeated.

¶262

51. In India, the law respect possession, persons are not permitted to take law in their hands and dispossess a person in possession by force as observed in Late Yashwant Singh (AIR 1968 SC 620) (supra) by this Court. The suit can be filed only based on the possessory title for appropriate relief under the

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Specific Relief Act by a person in possession. Articles 64 and 65 both are attracted in such cases as held by this Court in Desh Raj v. Bhata Ram (2007 AIR SCW 1560) (supra). In Nair Service Society (supra) held that if rightful owner does not commence an action to take possession within the period of limitation, his rights are lost and person in possession acquires an absolute title.

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57.

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The adverse possession requires all the three classic requirements to co-exist at the same time, namely, nec-vi i.e. adequate in continuity, nec-clam i.e., adequate in publicity and nec-precario i.e. adverse to a competitor, in denial of title and his knowledge. Visible, notorious and peaceful so that if the owner does not take care to know notorious facts, knowledge is attributed to him on the basis that but for due diligence he would have known it. Adverse possession cannot be decreed on a title which is not pleaded. Animus possidendi under hostile colour of title is required. Trespasser’s long possession is not synonym with adverse possession. Trespasser’s possession is construed to be on behalf of the owner, the casual user does not constitute adverse possession. The owner can take possession from a trespasser at any point in time. Possessor looks after the property, protects it and in case of agricultural property by and the large concept is that actual tiller should own the land who works by dint of his hard labour and makes the

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land cultivable. The legislature in various States confers rights based on possession.

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58. Adverse possession is heritable and there can be tacking of adverse possession by two or more persons as the right is transmissible one. In our opinion, it confers a perfected right which cannot be defeated on reentry except as provided in Article 65 itself. Tacking is based on the fulfillment of certain conditions, tacking maybe by possession by the purchaser, legatee or assignee, etc. so as to constitute continuity of possession, that person must be claiming through whom it is sought to be tacked, and would depend on the identity of the same property under the same right. Two distinct trespassers cannot tack their possession to constitute conferral of right by adverse possession for the prescribed period.

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59. We hold that a person in possession cannot be ousted by another person except by due procedure of law and once 12 years' period of adverse possession is over, even owner's right to eject him is lost and the possessory owner acquires right, title and interest possessed by the outgoing person/owner as the case may be against whom he has prescribed. In our opinion, consequence is that once the right, title or interest is acquired it can be used as a sword by the plaintiff as well as a shield by the defendant within ken of Article 65 of the Act and any person who has perfected title by way of

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adverse possession, can file a suit for restoration of possession in case of dispossession. In case of dispossession by another person by taking law in his hand a possessory suit can be maintained under Article 65 even before the ripening of title by way of adverse possession. By perfection of title on extinguishment of the owner’s title, a person cannot be remediless. In case he has been dispossessed by the owner after having lost the right by adverse possession, he can be evicted by the plaintiff by taking the plea of adverse possession. Similarly, any other person who might have dispossessed the plaintiff having perfected title by way of adverse possession can also be evicted until and unless such other person has perfected title against such a plaintiff by adverse possession. Similarly, under other Articles also in case of infringement of any of his rights, a plaintiff who has perfected the title by adverse possession, can sue and maintain a suit.”

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37. The evidence of PW.1 and the witnesses on behalf

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of the plaintiff are patchy and does not give a clear picture as to how they were in unlawful possession of the suit properties. PWs.2 and 3 have even failed to mention the names of the owners of the properties, thereby giving a clear indication that PWs.2 and 3 are not credible witnesses whose evidence can be

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believed. Under such circumstances, we have no hesitation to hold that the trial Court was right in holding that the plaintiffs have failed to prove the requisites for claiming title by adverse possession. In that view of the matter, we hold the point for consideration framed by us against the plaintiffs and in favour of the defendants.

¶284

Hence, RFA No.100218/2018, RFA No.100213/2018 and RFA No.100214/2018 are dismissed.

¶285

No order as to costs.

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Sd/(R.NATARAJ) JUDGE

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Sd/(RAJESH RAI K) JUDGE

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YAN-till para 7; RH-para 8 to 33; PJ –para 34 to end; CT:PA LIST NO.: 1 SL NO.: 23

Roopaleppa S/O Bhimappa Lamani v. Smt. Vasuda @ Vasundhara W/O Vasant Joshi

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Roopaleppa S/O Bhimappa Lamani v. Smt. Vasuda @ Vasundhara W/O Vasant Joshi

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