K.N. Raju Vs B.S. Chikkannashetty

THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 17.10.2012 PASSED IN R.A.No.46/2008 ON THE FILE OF ADDITIONAL DISTRICT JUDGE, HASSAN, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 5.1.2008 PASSED IN OS.NO.116/1996 ON THE FILE OF ADDITIONAL CIVIL JUDGE (SR.DN.), HASSAN.

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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 ASHOK S.KINAGI

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ORAL JUDGMENT

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This Regular second appeal is filed by the appellants challenging the judgment and decree dated 17.10.2012, passed in R.A.No.46/2008 by the learned Additional District Judge, Hassan, and the judgment and decree dated 05.01.2008 passed in O.S.No.116/1996 by the learned Additional Civil Judge (Sr.Dn.), Hassan.

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For convenience, the parties are referred to based on their rankings before the trial Court. The appellants were defendant Nos.7 and 8, respondent Nos.1 to 10 were

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the plaintiffs, and other respondents were the other defendants.

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Brief facts leading rise to the filing of this appeal

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are as follows:

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The plaintiffs filed a suit against the defendants for declaration of title and permanent injunction and also to declare the registered sale deed dated 02.08.1995, allegedly executed by defendant No.3 in favour of defendant Nos.6 to 8 in respect of suit schedule property, as null and void and not binding on the plaintiffs.

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3.1. It is the case of the plaintiffs that the father of

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the plaintiffs was the owner of land bearing Sy.No.18, and defendants No.1 to 5 were the owners of land bearing Sy.No.19 in Chikkabyadagere village, Kasaba Hobli, Belur Taluk. The father of the plaintiffs and defendants No.1 to 5, agreed to exchange their lands, accordingly, defendants No.1 to 5 executed a registered sale deed in favour of the plaintiffs’ father on 07.02.1962, and accordingly, the

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plaintiffs’ father also executed a registered sale deed.

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3.2. Defendants No.1 to 5 sold the land bearing Sy.No.19 in favour of the plaintiffs’ father. Similarly, the plaintiffs’ father sold the land bearing Sy.No.18 and executed the registered sale deed in favour of the husband of defendant No.2, defendants No.1 and 3 to 5. The plaintiffs’ father Puttachannaiahshetty died in 1984. After his demise, the plaintiffs succeeded to the suit schedule property and became the absolute owner and in possession of the suit land bearing Sy.No.19. Defendant No.3, filed an application to enter his name in respect of the suit schedule property. The Tahsildar, Belur, entered the name of defendant No.3 in the revenue records. Defendant No.3, taking undue advantage of the entries in the revenue record, sold the suit schedule property in favour of defendant Nos.6 to 8 under a registered sale deed dated 02.08.1985. Defendant Nos.6 to 8 are not the bonafide purchasers of the suit property for value without notice. It is also contended that defendant Nos.6 to 8 filed

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a suit in O.S.Nos.533/1995, 534/1995 and 535/1995. The plaintiffs came to know about the execution of the sale deed by defendant No.3 in favour of defendant Nos.6 to 8 after filing of said suits. Defendant No.3’s siblings also filed a suit in O.S.No.459/95 against defendant No.3 for partition in suit property. Hence, the plaintiffs filed a suit for declaration.

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3.3. Defendants filed a written statement admitting the execution of the registered sale deed dated 07.02.1962 in favour of the plaintiffs’ father, and possession of the property continued with defendants Nos.1 to 5 even after the execution of the registered sale deed in favour of the plaintiffs’ father. It is contended that defendants have been in continuous possession of the suit property, over the statutory period and acquired the title of the same by way of adverse possession. Defendant No.3 submitted an application to the Tahsildar, Belur to enter the name of defendant No.3. The Tahsildar has passed the order to enter the name of defendant No.3 in

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the revenue records. Defendant No.3 sold the suit schedule property in favour of defendant Nos.6 to 8 and delivered the possession of the suit schedule property in favour of defendant Nos.6 to 8. It is contended that the plaintiffs have no right to question the registered sale deed executed by defendant No.3 in favour of defendant Nos.6 to 8, and they are bonafide purchasers for valuable consideration and the plaintiffs are aware of all these circumstances, and the plaintiffs have suppressed the material facts and filed this present suit. Hence, prays to dismiss the suit.

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3.4. The legal representatives of defendant No.1

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filed an additional written statement contending that the suit filed by the plaintiffs is not maintainable. It is contended that they have constructed Mangalore tiled house and they are residing in the portion of suit schedule property. Hence, prays to dismiss the suit.

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3.5. The trial Court, based on the pleadings of the

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parties, framed the relevant issues.

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3.6. The plaintiffs, to prove their case, plaintiff No.4 examined as PW.1, examined 5 witnesses as PWs.2 to 6 and marked 39 documents as Exs.P1 to 39. In rebuttal, legal representatives of defendant No.1 i.e., defendant No.1(e) examined as DW.1. Defendant No.3 examined as DW.2 and defendant No.7 examined as DW.3. Defendant No.8 examined as DW.4, examined 2 witnesses as DWs.5 and 6 and marked 16 documents as Exs.D1 to D16.

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3.7. The trial Court, after recording the evidence, hearing both sides and assessing the verbal and documentary evidence, decreed the suit of the plaintiffs vide judgment dated 05.01.2008.

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3.8. Defendant Nos.7 and 8, aggrieved by the judgment and decree in O.S.No.116/1996, preferred an appeal in R.A.No.46/2008, on the file of learned Additional District Judge, Hassan.

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3.9. The First Appellate Court after hearing the parties, framed the relevant points for consideration and

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after reassessing the verbal and documentary evidence, dismissed the appeal vide judgment dated 17.10.2012. Defendant Nos.7 and 8, aggrieved by the impugned judgments, filed this Regular Second Appeal.

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Heard the arguments of Sri. K.G.Sadashivaiah,

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learned counsel for defendant Nos.7 and 8.

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Learned counsel for defendant Nos.7 and 8 submits that the parties have not acted upon the registered sale deed executed in 1962. Even after the execution of the registered sale deed, the defendants No.1 to 5 continued to be in possession of the suit schedule property. He submits that defendant Nos.1 to 5 have perfected their title through adverse possession. He submits that the name of defendant No.3 was entered in the revenue records. After verifying the revenue records, defendant Nos.6 to 8 have purchased the suit schedule property from defendant No.3 under a registered sale deed dated 02.08.1995. Defendant Nos.6 to 8 are in possession and enjoyment of the suit schedule property.

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He submits that both the courts below have not properly appreciated the entire evidence on record. The impugned judgments passed by the courts below are arbitrary, perverse and erroneous. Hence, prays to allow the appeal.

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Perused the records and considered the submissions of the learned counsel for defendant Nos.7 and 8.

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There is no dispute that the plaintiff’s father was the owner of land bearing Sy.No.18 and the defendants No.1 to 5 were the owners of land bearing Sy.No.19. The plaintiffs’ father and defendant Nos.1 to 5 agreed to exchange the said lands. Accordingly, the plaintiff’s father executed the registered sale deed in favour of defendants No.1 to 5 and similarly, defendants No.1 to 5 executed the registered sale deed in favour of the plaintiffs’ father in respect of the suit schedule property.

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From the perusal of the recitals of the registered sale deed, it discloses that defendants Nos.1 to 5 have delivered the possession of the suit schedule property in favour of the plaintiffs’ father. Defendant No.3 submitted an application to Tahsildar, Belur. The Tahsildar, Belur passed the order to enter the name of defendant No.3 in the revenue records regarding the suit property. Defendant No.3 is also a party to the registered sale deed executed in favour of the plaintiffs’ father. Defendant No.3 had not acquired any title by virtue of the order passed by the Tahsildar, Belur and based on the revenue entries, he had no right, title or interest over the suit schedule property, and he had no saleable right to execute the registered sale deed in favour of defendant Nos.6 to 8. Defendant Nos.1 to 5 are claiming that they have acquired title over the suit schedule property through adverse possession.

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Admittedly, the defendants are not admitting

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the title of the plaintiffs over the suit schedule property.

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To claim adverse possession, defendant Nos.1 to 5 must admit the ownership of the plaintiffs over the suit schedule property. As observed above, defendant Nos.1 to 5 have denied the title of the plaintiffs over the suit schedule property. Hence, the question of claiming a plea of adverse possession is unsustainable in the eye of the law.

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The Hon’ble Apex Court in the case of L.N.ASHWATHAMA AND ANOTHER VS. P. PRAKASH reported in

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AIR 2009 SCW 5439 , held in para No.17, which reads as under:

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17.The legal position is no doubt well settled. To establish a claim of title by prescription, that is adverse possession for 12 years or more, the possession of the claimant must be physical/actual, exclusive, open, uninterrupted, notorious and hostile to the true owner for a period exceeding twelve years. It is also well settled that long and continuous possession by itself would not constitute adverse possession if it was either permissive possession or possession without animus possidendi. The pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate

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until the former is renounced. Unless the person possessing the property has the requisite animus to possess the property hostile to the title of the true owner, the period for prescription will not commence.

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As observed above, defendant No.3 had no right to execute the registered sale deed in favour of defendant Nos.6 to 8. Defendant Nos.6 to 8 have not acquired any title by virtue of the registered sale deed executed by defendant No.3 dated 02.08.1995, and further, the sale deed executed by defendant No.3 in favour of defendant Nos.6 to 8 is not binding on the plaintiffs. Both courts below have concurrently recorded a finding of facts against the defendants. Both courts below, considering the entire material on record, have rightly passed the impugned judgments. Hence, I do not find any error in the impugned judgments or any substantial question of law that arises for consideration in this appeal.

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