L Prashivamurthy Vs Nanjunda Murthy

L MAHADEVANNA S/O LATE LINGAPPA AGED ABOUT 57 YEARS, R/O SY NO.94/G MUDIGUNDAM GRAMA KADABA KOLLEGAL BANGALORE DINDIGAL HIGHWAY CHAMARAJANAGARA DISTRICT -571440

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L NATARAJU S/O LATE LINGAPPA AGED ABOUT 49 YEARS,

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L PALAKSHA S/O LATE LINGAPPA AGED ABOUT 39 YEARS,

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L CHANDRASHEKHAR S/O LATE LINGAPPA

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HC-KAR

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AGED ABOUT 41 YEARS, R/O SY NO.94/B, MUDIGUNDAM GRAMA, KASABA KOLLEGAL, BANGALORE DINDIGAL HIGHWAY, CHAMARAJANAGARA DISTRICT- 571440.

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…APPELLANTS

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(BY SRI. NAVEEN J N., ADVOCATE)

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AND:

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NANJUNDA MURTHY S/O CHIKKA CHANDRA AGED ABOUT 62 YEARS, R/AT MADDRURU GRAMA, YALANDUR TALUK, CHAMARAJANAGARA DISTRICT-571441 (BY SRI. KRISHNAMOORTHY D., ADVOCATE FOR C/R)

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…RESPONDENT

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THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 24.06.2022 PASSED IN RA.No.5001/2018 ON THE FILE OF THE ADDITONAL DISTRICT AND SESSIONS JUDGE, CHAMARAJANAGARA (SITTING AT KOLLEGALA) DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 11.12.2017 PASSED IN OS No.11/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, KOLLEGAL.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE V SRISHANANDA

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HC-KAR

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ORAL JUDGMENT

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Heard Sri.Naveen J.N., learned counsel appearing for the appellants and Sri.D.Krishnamurthy, learned counsel appearing for the respondent.

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The defendants in O.S.No.11/2012 are the appellants in the second appeal challenging the validity of the judgment and decree passed by the learned trial judge in respect of following properties (hereinafter referred to as the 'suit properties') confirmed by the first appellate court in R.A.No.5001/2019.

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Schedule

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A-Property

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All that piece and parcel of agricultural dry land bearing Sy. No. 94/B measuring to an extent of 1 acre 21 cents situated on Bengaluru Dindigal National Highway bounded on the:

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North by: Burial ground of Christian community

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South by: Grama Tana area

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East by: Government school compound

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West by : Bengaluru - Dindigal Highway

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B-Property:

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All that piece and parcel of agricultural dry land bearing Sy. No. 94/B measuring to an extent of 205 feet on the

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northern side and 210 feet on the southern side and 50 feet north to south bounded on the:

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North by: Burial ground of Christian community

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South by: Mud road caused by local authorities

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East by: Government school compound

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West by: Bengaluru - Dindigal Highway

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All that piece and parcel of agricultural dry land bearing Sy. No. 94/B situated by Mudigundam Grama, Kasaba Kollegal, Chamarajanagar District measuring north to south 108 feet on the eastern side 188 feet, on the eastern side east west 267 feet on the southern side and 210 feet on the northern side bounded on the:

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North by: Mud road caused by local authorities

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South by: Grama Tana area

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East by: Government school compound

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West by: Bengaluru - Dindigal Highway"

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Facts in the nutshell which are utmost necessary for

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the disposal of the present appeal are as under:

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3.1 Plaintiff filed a suit for declaration and possession

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and permanent injunction in respect of the suit schedule property contending that he is the absolute owner of plaint 'B' schedule property and is in possession and sought for

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permanent injunction restraining the defendants from interfering with the plaint B schedule property, damages and separate enquiry into the mesne profits.

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3.2 Plaintiff claimed that he purchased the suit property by virtue of the sale deed marked at Ex.P1 dated 27.08.2005 executed by Sri.G.S.Shivaprakash and Sri.J.Jaideep. The revenue entries were mutated in the name of the plaintiff pursuant to the said sale deed and defendants without any right, title or interest over the suit property occupied by suit property during the period of vendor's of the plaintiff and on the day of execution of the sale, it is the plaintiff who was put in possession of the property but on the imaginary right, defendant started interfering with the suit property.

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3.3 Defendant pursuant to the suit summons entered appearance and filed written statement denying the plaint averments and set up the plea that defendants were let into the suit property by the vendors of the plaintiff and they have been in possession of the property for a consecutive period of more than 50 years and therefore, the suit is to be dismissed.

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3.4 The suit on due contest came to be decreed by the

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trial Court.

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3.5 Aggrieved by the judgment and decree passed by the trial Court, defendants filed an appeal before the District Court in R.A.No.5001/2018.

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3.6 Learned Judge in the first appellate court after securing the records heard the arguments of the parties in detail and on re-appreciation of the material on record dismissed the appeal of the defendants.

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Being further aggrieved by the same, defendants are before this court in this appeal on the following grounds and substantial questions of law, which reads as under:

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Grounds

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 The judgment and decree of the courts below is liable to set aside on the ground that though the trial court framed issue No.9 regarding the limitation, the same was not discussed separately as issue No.9 was discussed along with issue Nos.1 to 12. Hence the trial court has committed grave error in not answering the issue No.9 regarding limitation which is purely question of law and the same was taken up along with the facts of the

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case. On that ground alone, the judgment and decree of both the courts below are liable to be set aside.

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

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The judgment and decree of the courts below is liable to be set aside on the ground that admittedly the plaintiff purchased the suit schedule property in the year 2005 and the suit was instituted in the year 2012 and the suit for declaration is barred by limitation as such the plaintiff has kept quiet since 2005 and instituted the suit in the year 2012.

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 It is submitted that both the courts below failed to appreciate the evidence of PW1, PW2 and DW1 and Ex.D1 to D8 wherein the PW1 and PW2 categorically admitted the possession of the defendants over the 'B' schedule property. The plaintiff has never disputed the possession of the defendants over the suit schedule property. Such being the case, the plaintiff has categorically admitted the possession of the defendants over the suit schedule property, the question of granting decree of declaration and possession does not arise.

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 The judgment and decree of the courts below is liable to set aside on the ground that the defendants have questioned the order of the Land Tribunal before this Hon'ble Court in W.P.No.40064012/2013. This Hon'ble Court has granted an interim order against eviction of defendants from the suit schedule property. Both the courts below

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ignored the interim order granted by this Hon'ble Court and ought to have awaited the decision in W.P.No.4006-4012/2013. However the writ petition was disposed off subject to the outcome of the civil suits pending before the civil courts. Such being the case, there is no whisper about the order passed by this Hon'ble Court while decreeing the suit of the plaintiff.

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

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The reasoning of the trial court is that there is no dispute in respect of the possession of the defendants over the suit schedule property. The reasoning of the trial court is that if the defendants are in settled possession, they ought to have filed a counter claim in the suit filed by the plaintiff. The trial court at paragraph 52 observed that the defendants have not made any counter claim to declare their title over the suit schedule property. Hence decreed the suit of the plaintiff. The said observation of the trial court is completely contrary to the evidence on record as such once the plaintiff himself admits the possession of the defendants over the suit schedule property, the question of filing counter claim by the defendants does not arise. As such at the end of the day, the plaintiff who approached the court has to prove his case independently by way of evidence not on the weakness of the defendants. This principle of law was reiterated by the Hon'ble Court and also Hon'ble Supreme Court of India in plethora of judgments.

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HC-KAR

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The judgment and decree of the courts below is liable to set aside on the ground that the trial court has observed that the defendants are in permissible possession as per the permission granted by Veerasangappa. On the other hand, the trial court has given a finding that the plaintiff became the owner of the property by virtue of registered sale deed dated 27.08.2005. When the plaintiff has purchased the suit schedule property through registered sale deed, the PW1 in his evidence has categorically stated that his vendor has given an undertaking that he will vacate the defendants and he will give vacant possession of the suit schedule property. Such being the case, when the vacant possession of the land in question was not delivered till date, the defendants are in possession of the suit schedule property. The PW1 has stated himself in his evidence that there was a negotiation for Rs.65,00,000/- and he had agreed for the said negotiation. The said admission categorically indicates and prove that the defendants are in possession of the suit schedule property.

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The judgment and decree of the courts below is liable to set aside on the ground that the subject matter is before the land tribunal. The land tribunal had awarded occupancy rights in favour of the tenant. The same was questioned before this Hon'ble court and the matter was remitted back to the land tribunal by setting aside the order of the

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land tribunal. In the land tribunal, the vendor of the plaintiff has given a statement of no objection to grant occupancy rights in favour of the tenant. It is a fraud played the vendor of the plaintiff knowingfully that the defendants are in possession of the suit schedule property. That order was put to test before this Hon'ble court and this Hon'ble Court observed that the same will be subject to the outcome of the result of the suit pending before the trial court.

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

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

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The judgment and decree of the courts below is liable to set aside on the ground that the 1^st appellate court being a appellate court failed to reappreciate the evidence of the court below and passed the judgment and decree which is cryptic, non-speaking, without any reason and liable to be set aside.

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The judgment and decree of the courts below is liable to set aside on the ground that the documents produced by the defendants herein i.e., Ex.D1 to Ex.D28 categorically goes to show that the defendants are in possession of the suit schedule property. The defendants are running a fertilizer shop by obtaining the trade licence, Ex.D16 and also certificate issued by legal metrology, certificate by KSFC and registration certificate, professional tax certificate as per Ex.D17, 18, 19 and 20 which clearly goes to show that the defendants are in possession of the property in question.

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 The judgment and decree of the courts below is liable to set aside on the ground that the core question is whether the plaintiff is the owner of the property is not decided both the courts below. The plaintiff himself in the plaint has admitted that the defendants are in possession of 'B' schedule property. The relief sought by the plaintiff is to declare that he is the owner of the 'B' schedule property and for possession and injunction. The crucial aspect of limitation was completely ignored by both the courts below while decreeing the suit of the plaintiff.

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Substantial Questions of Law:

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(i) Whether the courts below were right in decreeing the suit of the plaintiff ignoring the law of limitation?

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(ii) Whether the courts below were right in decreeing the suit of the plaintiff for non joinder of necessary and proper parties?

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(iii) Whether the courts below were right decreeing the suit of the plaintiff without giving any findings regarding the principles of adverse possession pleaded by the defendants?

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(iv) Whether the courts below were right in decreeing the suit of the plaintiff when there is a serious dispute in respect of identity of the suit schedule property?

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Sri.Naveen J.N. learned counsel for the plaintiff, reiterating the grounds urged in the appeal memorandum vehemently contended that both the courts failed to note that the defendants were in possession of the property right from the period of vendors of the plaintiff and they have perfected their possession adversely to the interest of vendors of the plaintiff and plaintiff then therefore they could not have been asked to vacate the suit property and sought for admitting the appeal on the aforesaid substantial questions of law.

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Per contra Sri.D.Krishnamoorthy, learned counsel for the respondent-plaintiff, supports the impugned judgment.

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Having heard the arguments of both sides this Court perused the material on record meticulously.

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On such perusal of the material on record, it is noticed that bare minimum ingredients to plead the adverse question is not pleaded in the written statement.

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How to plead the adverse position is no longer res integra.

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10. In the case of BASVANT RAO, SINCE DECEASED

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BY HIS LEGAL REPRESENTATIVES AND RAJKUMAR

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reported in ILR 2009 KAR 1099 , a co-ordinate bench of this court has clearly ruled that a party claiming adverse possession must prove that his possession is within quotes, 'Necvi", 'Nec clam' and 'Nec precario' i.e., peaceful, open and continuous possession against the real owner of the property.

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In the absence of such basic ingredients in written statement, defendant cannot be permitted to plead adverse possession as against the title holder of the suit property.

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Therefore, decreeing of the suit by the trial court confirmed by the first appellate court needs no interference in this second appeal, as the substantial questions of law raised by the defendant, do not merit for further consideration.

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Accordingly, the following:

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ORDER

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The appeal is meritless and is hereby dismissed.

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Sd/(V SRISHANANDA) JUDGE

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SS/ List No.: 1 Sl No.: 52

L Prashivamurthy v. Nanjunda Murthy

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L Prashivamurthy v. Nanjunda Murthy

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