Guraling Vs Sahivamoggi

THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC., PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 17.04.2015 PASSED IN RA 119/2013 ON THE FILE OF VII ADDITIONAL DISTRICT AND SESSION JUDGE BELAGAVI SITTING AT CHIKODI CONFIRMING THE JUDGMENT AND DECREE DATED 11.03.2013 PASSED IN O.S.NO.26/2008 ON THE FILE OF SENIOR CIVIL JUDGE CHIKODI BY ALLOWING THE TOP NOTED APPEAL TO MEET THE ENDS OF JUSTICE AND EQUITY.

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THIS APPEAL, COMING ON FOR ADMISSION THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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NC: 2025:KHC-D:7660 RSA No. 100105 of 2016

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HC-KAR

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ORAL ORDER

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(PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL)

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The defendants are before this Court in this

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appeal, being aggrieved by the judgment and decree dated 11^th March 2013, passed in O.S. No.26/2008 by the Senior Civil Judge, Chikodi, which is confirmed by the judgment and order dated 17^th April 2015, passed in R.A. No.119/2013 by the VII-Addl. District and Sessions Judge, Belagavi at Chikodi.

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The above suit in O.S. No.26/2008 is filed by the

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plaintiff / respondent herein seeking the relief of declaration that he is the absolute owner of the suit properties and also for the relief of possession of the three farm houses and shed situated in the land bearing R.S. No.110/3 situated at Kabbur Village and also for the consequential relief of injunction restraining the defendants from interfering with his peaceful possession and enjoyment of the suit properties.

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HC-KAR

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The case of the plaintiff is that, he was the

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adopted son of one Adiveppa Mallappa Kurbett of Kabbur Village in 1967 in terms of registered deed of adoption. Upon the demise of his adoptive father, the name of the plaintiff came to be mutated vide M.E. No.7003, dated 29.10.1974 and as such the plaintiff has been in possession and enjoyment of the suit properties.

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The defendants are the relatives of the natural father of the plaintiff namely Mallappa Irappa Kurbet. They had sought permission of the plaintiff to occupy the three farm houses existed in the suit properties to be used for their residential purposes promising to vacate the same within a short period. Considering the same, the plaintiff had permitted the defendants to use the said three farm houses. The defendants have no right, title and interest in any portion of the suit properties or in the farm houses existed thereon. That taking undue advantage, being in permissive possession, they attempted to interfere with the peaceful possession of the plaintiff, constraining him to file the above suit for declaration and possession.

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HC-KAR

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Written statement is filed by defendant No.2 denying the plaint averments, however admitted the existence of the suit properties. Claim of the plaintiff being the owner in possession is denied. The allegation of the defendants disturbing the peaceful possession and enjoyment of the suit properties by the plaintiff is also denied. The defendants have claimed that they have in possession of the suit properties for over 80 to 100 years from the time of the ancestors, cultivating the suit land and they also having constructed the suit houses.

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It is contended that the defendants are in actual possession and enjoyment of suit property in terms of a registered deed of sale that was executed in their favour on 15.10.1957 by their grandfather Ramappa. However, in view of provisions of The Karnataka Prevention of Fragmentation and Consolidation of Holdings Act, 1966, the same could not be acted upon and same was cancelled. It is also contended that the defendants were in possession of the suit property in terms of the agreement executed by the plaintiff as per of Ex.D.3 during 1984. Alternatively,

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NC: 2025:KHC-D:7660 RSA No. 100105 of 2016

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HC-KAR

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defendants have contended that in the event of Court coming to the conclusion of plaintiff being entitled for possession of suit property, they may be declared as having

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become owners of the suit property by way of adverse possession. Based on the pleadings of the parties, the Trial

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Court framed the following issues for its consideration:

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“Issues

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1. Whether plaintiff proves that he is the absolute owner of the suit property by virtue of adoption when he is in possession of the suit properties till today by paying the revenue and taxes?

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2. Whether he further proves the amendment and development made by the adoptive father in the suit properties as contended in plaint pare No.4?

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3. Whether he further proves that the defendants being the relative of genetic father Mallappa requested for temporary shelter in the farm house and agreed to vacate the same within short period?

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4. Whether he further proves that the defendants refused to vacate the farm house in spite of request and demands?

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5. Whether defendant proves that they are in possession and enjoyment of the suit property by virtue of sale deed dated 15.10.1957?

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6. Whether the suit suffers from non-joinder of necessary parties?

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7. Whether the defendants are entitled for compensatory cost of Rs.10,000/-

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8. What order or decree?

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NC: 2025:KHC-D:7660 RSA No. 100105 of 2016

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HC-KAR

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Recasted Issues:

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1. Whether plaintiff proves that he is the absolute owner of the suit properties and he is in possession of suit properties except three farm houses and shed situated in the suit RS No.110/3 of Kabbur village?

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2. Whether plaintiff proves about the alleged improvement and development made by his adoptive father in the suit properties?

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Additional Issues

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1. Whether plaintiff further proves about the alleged interference of the defendants?

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2. Whether plaintiff is entitled for declaration and possession of three farm houses and shed situated in suit RS No.110/3 of Kabbur village and permanent injection as prayed?

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3. Whether defendants prove that they became owners of suit properties by way of adverse possession?

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4. Whether suit is not properly valued and court fee paid is incorrect?”

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Plaintiff examined himself as PW.1 and another

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witness was examined as PW.2. Plaintiff exhibited 26 documents marked as Ex.P.1 to Ex.P.26. Defendant No.3 examined himself as DW.1 and other six witness as DW.2 to DW.7 and exhibited 28 marked as Ex.D.1 to Ex.D.28. On appreciation of evidence the Trial Court decreed the suit as

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prayed for directing the defendants to handover the possession of the suit property within 60 days from the date

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HC-KAR

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of the decree. Being aggrieved, the defendants preferred Regular Appeal in R.A.No.119/2013. The First Appellate Court framed the following points for its consideration:

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“POINTS

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1. Whether the appellants prove that, the impugned judgment and decree of the trial court is not sustainable and needs to be interfered?

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2. What order?”

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On re-appreciation of evidence, the First Appellate Court answered point No.1 in the negative and point No.2 in the affirmative and consequently dismissed the appeal confirming the judgement and decree passed by the Trial Court. Being aggrieved, the defendants are before this Court.

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Counsel for appellants/defendants reiterating the grounds urged in the memorandum of appeal, submitted that the Trial Court and First Appellate Court have not taken into consideration the undisputed fact of deeds of sale dated 15.10.1957 executed as per Ex.D.1 and Ex.D.2 by Adiveppa in favour of Mallappa and Ramappa the

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HC-KAR

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forefathers of the defendants conveying 1/3^rd share each in their name. He submitted the defendants have been in possession of the suit property by virtue of the said rights created by the adoptive father of the plaintiff. Further, he submits that the plaintiff himself had executed an agreement in the year 1984 agreeing to allot certain share in the suit property in favour of the defendants. In that view the matter, he submits that the claim of the plaintiff permitting the defendants to occupy the portion of premises is unfounded. He further submits that in any event defendants and their forefathers having been in possession of the property for over 100 years is proved by the documentary evidence produced indicating such transaction dating back to the year 1957. That the Trial Court and the First Appellate Court ought to have drawn inference about defendants being in possession of property negating the claim of the plaintiff. He submit substantial question of law therefore arises for consideration.

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Per contra counsel appearing for the plaintiff/respondent submits that the plaintiff and

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HC-KAR

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defendants have taken inconsistent and mutually

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destructive stand, while on the one hand defendants are claiming to be the owners of properties by virtue of deeds of sale at Ex.D.1 and Ex.D.2 and in terms of alleged agreement of the year 1984, on the other hand they are claiming to have perfected their title by way of adverse possession. He submits the defendants having failed to establish their defence, the Trial Court and First Appellate Court have rightly decreed the suit. Further, he submits that since the said decree has even been satisfied and the possession has been delivered by the defendants, no substantial question of law would therefore arise for consideration.

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Heard. Perused the records.

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The facts narrated above do not require any

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reiteration since the plaintiff claims to be the owner of the property by virtue of he having inherited the same upon the demise of his adoptive father which fact is not disputed by the defendants. The question of proving the claim of the

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HC-KAR

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plaintiff would not arise since the defendants have claimed their right in terms of deeds of sale dated 15.10.1957 produced as Ex.D.1 and Ex.D.2, which were purportedly executed by Adiveppa in favour of Mallappa and Ramappa. Admittedly, the said deeds of sale were cancelled in the light of the provisions of The Karnataka Prevention of Fragmentation and Consolidation of Holdings Act, 1966. In other words, no subsisting rights were created under the said deeds of sale. That apart, defendants have not pleaded anything whatsoever as to their relationship inter se with the said Mallappa and Ramappa. Therefore, the defendants cannot take advantage of such deeds of sale.

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The other contention urged by the defendants is that the plaintiff himself had executed an agreement in the year 1984 agreeing to give them certain share in the suit property. The said document not having been proved in a manner known to law, the Trial Court and the First Appellate Court declined to accept even the said contention.

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HC-KAR

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As regards the third aspect of the matter namely the defendants perfecting their title by adverse possession, as taken note of by the Trial Court and the First Appellate Court, nowhere in the written statement have the defendants pleaded the date, month and year from which their possession became adverse/hostile to the title of the plaintiff. This being the essential and primary requirement to consider the plea of adverse possession and same not having been pleaded, the Trial Court and the First Appellate Court are justified in declining to accept even the said alternative plea. Admittedly, decree has been satisfied by defendants delivering the possession of suit properties to the plaintiff as directed.

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Therefore, no substantial question of law would arise for consideration.

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In the result, the following:

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ORDER

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a) Appeal is dismissed.

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HC-KAR

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b) Judgment and decree dated 11.03.2013 passed in O.S.No.26/2008 by the Senior Civil Judge, Chikodi and the judgment and decree dated 17.04.2015 passed in R.A.No.119/2013 by the VII Additional District and Sessions Judge, Belagavi, at Chikodi are confirmed.

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Sd/(M.G.S. KAMAL) JUDGE

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VNP & SH / CT-ASC List No.: 1 Sl No.: 17

Guraling v. Sahivamoggi

Case brief

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Guraling v. Sahivamoggi

Case brief

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