Bangalore District Court
Sri.B.A.Narayana vs Sri.S.M.Shivashankar on 21 October, 2021
1 O.S.8044/2014
IN THE COURT OF THE XXV ADDL. CITY CIVIL &
SESSIONS JUDGE
AT BANGALORE CITY - CCH NO.23.
DATED THIS THE 21 st DAY OF OCTOBER, 2021.
PRESIDING OFFICER
PRESENT : Sri.Mohan Prabhu,
M.A., L.LM.,
XXV ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
O.S.No.8044/2014
PLAINTIFF/S: Sri.B.A.Narayana,
S/o B.H.Ashwathanarayana,
Aged about 45 years,
R/at No.19, 14 th cross,
K.P.Agrahara,
Magadi Main road,
Bangalore - 560 023.
(By Sri.HTJ, Advocate)
Vs.
DEFENDANT/S: 1. Sri.S.M.Shivashankar,
S/o S.V.Muniyappa,
Aged about 30 years,
R/at No. 67,
Adinarayana Temple Street,
2 O.S.8044/2014
Cottonpet,
Bangalore - 560 053.
(By Sri.CNKR, Advocate)
* * * * *
Date of institution of suit : 21.10.2014
Nature of suit : Declaration &
possession
Date of commencement
of recording of evidence : 13.03.2017
Date on which the judgment
was pronounced : 21.10.2021
Duration of the suit :Year/s Month/s Day/s
07 00 00
JUDGMENT
1. This is a suit filed by the plaintiff against the defendant to declare that the plaintiff is the absolute owner of the suit schedule property and consequently direct the defendant to quit, vacate and deliver the 3 O.S.8044/2014 vacant possession of the suit schedule property to the plaintiff and to direct the defendant to pay a sum of Rs.5,000/- per month for his illegal and unauthorised occupation of the schedule premises from the date of suit till delivery of possession.
2. The suit schedule property is the property bearing No. 30 (old No. 67, Basavaraj lane, Cottonpet cross, Bangalore - 5609 053, measuring east to west 11'6'' north to south 22'6'' in all 258.75 square feet, together with old Madras terrace and mud roof building and bounded on the:
East by : Private property,
West by : Common passage & property of
Narayanamma
North by : Remaining property No. 67 bequeathed
to Nagaraj
South by : Government road.
4 O.S.8044/2014
3. The plaint averments briefly stated as follows:
The plaintiff is the absolute owner in possession and enjoyment of the suit schedule property as the same is purchased by him from H.B.Rajashekar under registered sale deed dated 21.2.2014 for valuable sale consideration. The suit schedule property along with other property was originally belongs to P.N.Ramaiah @ Chikkaramaiah. The said P.N.Ramaiah @ Chikkaramaiah had bequeathed the property belongs to him to his two wives Lakshmidevamma and Sakamma vide Will dated 16.8.1961. They have no issues. After the death of Sakamma Smt.Lakshmidevamma has succeeded to the said property. Smt.Lakshmidevamma was residing the premises right from the date of marriage. She was paying the taxes to the then Bangalore City Corporation and khatha stood in her 5 O.S.8044/2014 name. Since she was aged and as she has no male issues she has bequeathed the property in favour of her brother Setty Srinivasaiah, Ashwathanarayana S/o Setty Chennappa and Muniyappa and Nagaraja S/o S.Venkateshaiah vide registered Will dated 19.3.1995. Under the said Will Smt.Lakshmidevamma has bequeathed the suit schedule property in favour of Setty Srinivasaiah. Smt.Lakshmidevamma died on 29.7.1995 in her house No. A67, Adinarayana Temple Street, Cottonpet, Bangalore. The khatha has been changed to the names of legatees. Setty Srinivasaiah has passed away leaving behind his children S.Sathyanarayana, Anand Setty, Muralidhara, Govindaraju, Umadevi, Padmavathi, Vanajakshi and Saraswathi. The property which was bequeathed in favour of Setty Srinivasaiah were in the physical 6 O.S.8044/2014 possession and enjoyment of his children. The property which has been bequeathed in favour of Setty Srinivasaiah has been sold to H.G.Rajashekar under sale deed dated 10.4.2007 and they have put the purchaser in physical possession of the property. Khatha of the suit schedule property has been transferred to the name of H.G.Rajashekar. H.G.Rajashekar was in possession and enjoyment of the property and he has been paying the taxes to the BBMP. Sri.H.G.Rajashekar has sold the property in favour of the plaintiff under sale deed dated 21.2.2014. The khatha of the suit schedule property has been changed in the name of the plaintiff.
The defendant is an utter stranger to the suit schedule property. At no point of time the defendant or his family members were residing in the suit schedule premises in any capacity either permissive possession. 7 O.S.8044/2014 The defendant was residing in the adjacent premises. In the absence of the plaintiffs vendor the defendant has trespassed into the house by breaking open the lock and filed suit in O.S.No.1974/2014 for the relief of permanent injunction against the plaintiff. The defendant who was residing adjacent to the suit schedule property has obtained some documents by giving false information to the government authorities viz., household ration card, voters list, driving licence, etc., The khatha of the suit property was not changed in the name of the defendant. The voters identity card etc., obtained by the defendant is on the basis of the information furnished by him. No officials visited to the suit schedule property. The defendant has filed another suit in P.Misc.No.23/2010 on 16.6.2010 claiming that he is the absolute owner against the sons 8 O.S.8044/2014 of Setty Srinivasaiah in which the daughters are not made parties. As on the date of filing the suit the children of Setty Srinivasaiah have lost the right, title and interest in respect of the schedule property, since they have sold the property in favour of the vendor of the plaintiff on 10.4.2007. In the suit filed against the sons of Setty Srinivasaiah the defendant has contended that they were interfering with the possession of the suit premises and that too when the legal heirs of Setty Srinivasaiah has sold the property in favour of Sri.H.G.Rajashekar vide sale deed dated 10.4.2007. Hence the question of legal heirs of Setty Srinivasaiah interfering with his possession does not arise at all. The defendant has filed the suit against the legal heirs of Setty Srinivasaiah with malafide intention to extract money without making the purchaser as a party to the 9 O.S.8044/2014 suit. The defendant has also filed another suit in O.S.No.5144/2014 on 9.7.2014 against this plaintiff and Sri.H.G.Rajashekar and BBMP for permanent injunction restraining the BBMP from changing the khatha by suppressing the fact that khatha has been made in the name of Sri.H.G.Rajashekar. In fact the defendant has given the representation that he has filed P.Misc.No.23/2010 and as such he has sought to not to change the khatha by suppressing the fact that the khatha has already been transferred to the name of the purchaser. The defendant is a land grabber and he has trespassed into the land during the absence of the lawful owner Sri.H.G.Rajashekar by breaking open the lock and thereafter filing the suit along with Misc.petition by suppressing the material facts and without impleading the true and lawful owner as a 10 O.S.8044/2014 party. Hence the plaintiff has filed this suit for recovery of possession of the suit schedule property from the defendant who is unauthorised occupant of the premises. The plaintiff is also entitled for damages at the rate of Rs.5,000/- per month for his illegal occupation of the suit schedule property. Hence on these grounds the plaintiff prayed to decree the suit.
4. The defendant who entered appearance by engaging counsel resisted the claim of the plaintiff by filing his written statement. The written statement filed by the defendant briefly stated as follows:
The defendant parents were permanently residing at No. 67, Adinarayana Temple street, Cottonpet, (Haralapete) Bangalore - 53. The birth of the defendant took place in the plaint schedule property. The defendant herein along with his parents was / is 11 O.S.8044/2014 residing in the schedule property. Originally the property bearing No. 67 was belongs to Smt.Lakshmidevamma W/o P.N.Ramaiah. Smt.Lakshmidevamma during her life time has executed a Will dated 19.9.1995 and as per the said Will the schedule property has been allotted to Setty Srinivasaiah by virtue of the Will Setty Srinivasaiah has become the owner of the schedule property. Though by virtue of the registered Will dated 19.9.1995 late Setty Srinivasaiah has become the owner of the schedule property, the said Setty Srinivasaiah or his legal representatives never resided in the schedule property. On the other hand the defendant and his parents residing in the schedule property as owners. Late Setty Srinivasaiah or his legal heirs never exercised their right of ownership over the schedule 12 O.S.8044/2014 property. The defendant since from his birth continuously uninterruptedly is in possession and enjoyment of the suit schedule property and same is known to all including Setty Srinivasaiah and his legal heirs and it is known by all the neighbourers. Late Setty Srinivasaiah's legal representatives namely Sathyanarayana S, S.Murali, S.Govindaraju did not exercised their any of the right so also their father Setty Srinivasaiah also had not exercised his right over the suit schedule property till 24.5.2015. However to the shock and surprise of the defendant the legal representatives of Setty Srinivasaiah namely S.Sathyanarayana, S.Murali, S.Govindaraju made hectic attempt to interfere with the suit schedule property and to get the possession from the defendant. Hence this defendant has filed the suit for declaration before 13 O.S.8044/2014 the Hon'ble City Civil Court, Bangalore and sought for the relief to declare that this defendant is the owner of the suit schedule property by way of adverse possession. This suit filed by the defendant is pending before this court. When the suit of the defendant was pending the plaintiff in this suit secured the sale deed from Sri.H.G.Rajashekar vide sale deed dated 21.2.2014. The plaintiff behind the back of the defendant has secured a sale deed from Sri.H.G.Rajashekar . After securing a sale deed from Sri.H.G.Rajashekar the plaintiff to the shock and surprise of the defendant rushed to the schedule property on 7.3.2014 to take the possession of the property forcibly. Immediately the defendant went to the police station and lodged the complaint about the illegal attempt of the plaintiff to take the possession. 14 O.S.8044/2014
In this regard the defendant's elder brother lodged the complaint for which the police have issued acknowledgment dated 8.3.2014. After lodging the complaint the plaintiff on 10.3.2014 again rushed to the suit schedule property with goondas and henchmen and made an hectic attempt to take the possession of the schedule property forcibly, however this defendant has resisted the illegal attempt of the plaintiff with the help of neighbourers and immediately this defendant has also filed a suit in O.S.No.1974/2014 against this plaintiff for the relief pf permanent injunction to restrain him from interfering with this defendant's peaceful possession and enjoyment of the suit schedule property. Till 7.3.2014 this defendant has no knowledge about the sale deed secured by this defendant from one Sri.H.G.Rajashekar. The plaintiff 15 O.S.8044/2014 in this suit and his vendor namely Sri.H.G.Rajashekar have stepped into the shoes of the original owners namely S.Sathyanarayana, S.Murali, S.Govindaraju. Against the original owners this defendant has filed the suit claiming his ownership by way of adverse possession. During the pendency of that suit the plaintiff purchased the suit schedule property which is hit by the principles of lis pendency. The vendors of this plaintiff were also aware that this defendant had filed the suit for declaration declaring him as absolute owner of the suit schedule property by way of adverse possession. Knowing fully well about the pendency of the suit this plaintiff secured the sale deed behind the back of this defendant. Hence the suit of the plaintiff is not maintainable as it clearly hit by the principles of lis pendency. The defendant from his birth is in 16 O.S.8044/2014 possession and enjoyment of the suit schedule property along with his parents. The defendant's parents were also resided in the suit schedule property prior to birth of this defendant. The plaintiff has not filed the suit within 12 years as per the Article 65 of the Indian Limitation Act and the above suit is barred by Law of Limitation. The plaintiff without obtaining necessary permission of the court during the pendency of the suit secured the sale deed, hence the alleged sale deed secured by the plaintiff is a void document. On the basis of the sale deed dated 21.2.2014 the plaintiff cannot sought for the declaration declaring his ownership over the suit schedule property. When the sale deed itself is void document the khatha obtained on the basis of the void document has no evidentiary value. The plaintiff who has sought for eviction of the 17 O.S.8044/2014 defendant and also sought for damages alleging that the defendants possession over the schedule property is illegal, unauthorised, etc., before seeking such a relief at the hands of this court the plaintiff has not issued any notice to the defendant as per section 106 of T.P.Act. Hence in the absence of the notice the prayer of the plaintiff is not sustainable. The plaintiff has not paid sufficient court fee on the market value of the property. The plaintiff has not arrayed his previous vendor as a party to the suit. Hence the suit suffers from non-joinder of necessary parties. There is no cause of action to file this suit. The defendant was born in the schedule property on 15.10.1983. Prior to his birth his parents were residing in the suit schedule property. From the date of birth itself the defendant in the above suit is enjoying the suit schedule property 18 O.S.8044/2014 as its absolute owner. Neither late Setty Srinivasaiah nor his legal representatives have exercised their ownership rights over the suit schedule property. The legal heirs of Setty Srinivasaiah did not in possession of the schedule property at any point of time. It is alleged that the legal heirs of Setty Srinivasaiah executed sale deed dated 10.4.2007 in favour of one Sri.H.G.Rajashekar. Neither legal representatives of Setty Srinivasaiah nor Sri.H.G.Rajashekar were in possession of the suit schedule property. At no point of time Sri.H.G.Rajashekar was in possession of the suit schedule property . However he has executed sale deed dated 21.2.2014 in favour of the plaintiff which is the paper transaction. Neither the plaintiff nor his vendor Sri.H.G.Rajashekar or the legal heirs of Setty Srinivasaiah were in possession of the suit schedule 19 O.S.8044/2014 property. The defendant who enjoyed the suit schedule property by birth became the absolute owner of the suit schedule property by way of adverse possession. Hence on these grounds the defendant prayed for dismissal of this suit.
5. Based on the pleadings of the parties the following issues are framed:
(1) Whether the plaintiff proves his
right and title over the suit
schedule property ?
(2) Whether the plaintiff is entitled for vacant possession of the suit schedule property ?
(3) Whether the defendant proves the contents of para No. 2 to 5 of his written statement ?
20 O.S.8044/2014(4) Whether the suit of the plaintiff is barred by limitation ?
(5) Whether the court fee paid by the plaintiff is insufficient ?
(6) Whether the plaintiff is entitled for the damages at the rate of Rs.5,000/- per month as claimed by him ?
(7) Whether the plaintiff is entitled for the reliefs as sought by him ?
(8)To what order or decree ?
Additional Issues framed on 16.10.2020:
(1) whether the plaintiff proves that the defendant in this suit is a trespasser and his possession is illegal as contended by him in the plaint ?21 O.S.8044/2014
6. In order to prove the case of the plaintiff the plaintiff examined himself as PW1 and the documents Ex.P1 to Ex.P8 are marked on the side of the plaintiff. During the course of cross-examination of DW1 one document Ex.P9 is marked on the side of the plaintiff. Thus in all document Ex.P1 to Ex.P9 are marked on the side of the plaintiff. On the side of the defendant the defendant examined himself as DW1 and the documents Ex.D1 to Ex.D7 are marked on the side of the defendant. Two witnesses are examined as DW2 and DW3. DW2 is the father of DW1.
7. I have heard the arguments on the side of the learned counsel for the plaintiff and the learned counsel for the defendant. The learned counsel for the defendant also filed written arguments. 22 O.S.8044/2014
8. The learned counsel for the plaintiff relied upon the following decisions:
(1) ILR 2014 Kar 4726 Janatha Dal Party, Bangalore Vs. Indian National Congress and others. (2) Judgment passed by the Hon'ble Supreme Court of India in Civil Appeal No. 5779/2021.
9. The learned counsel for the defendant has relied upon the following decisions:
(1) 1983 Cri.L.J. 1694 State of H.P. Vs. Thakur Das & etc. (2) AIR 1959 A.P. 272 Jayalakshmi Devamma Vs. Janardhana Reddy.
(3) AIR 1983 Calcutta 337 Traders Syndicate Vs. Union of India (4) AIR 1981 SC 2085 Ramji Dayaval and sons Private Limited Vs. Invest Import 23 O.S.8044/2014 (5) AIR 1971 Delhi 316 Debi Singh Vs. Bheem Singh and others (6) AIR 1976 Rajasthan 108 Kalulal and others Vs. Sri. Munnalal and others (7) AIR 1990 M.P. 348 Dowlath Singh and another Vs. Thulsi Ram and another.
(8) AIR 2019 Calcutta 110 West Bengal State Electricity Board Corporation Vs. M/s. Sivak Properties Private Limited.
(9) AIR 2019 SC 3827 Ravindra Kaur Gravel and others Vs. Manjith Kaur and others.
(10)AIR 1968 SC 1165 Nair Service Society Limited Vs. K.C.Alexander and others.
(11) AIR 2015 (NOC) 569 (Tri) Smt.Deepali Lod Vs. State of Tripura and others.
(12) AIR 2004 SC 1893 Vasanthi Ben Prahaladji Naik and others Vs. Somnath Mulji Bai Naik and others 24 O.S.8044/2014 (13) AIR 1979 SC 1142 Padmini Bai and others Vs. Thangavva and others (14) AIR 2003 SC 1905 Bandar Singh and others Vs. Nihal Singh and others (15) ILR 1996 Kar 1340 Allabaksh Vs. Md. Hussain (16) AIR 2004 SC 5113 Tej Narain and another Vs. Shanthi Swaroop Bore and another (17) (2014) 1 SCC 669 Gurudwar Saheb Vs. Grama Panchayat Village Sithala and another.
10.. My findings to the above issues are as under:
Issue No.1 : In the Affirmative
Issue No.2 : In the Affirmative
Issue No.3 : In the Negative
Issue No.4 : In the Negative
Issue No.5 : In the Negative
Issue No.6 : Partly in the Affirmative
Issue No.7 : In the Affirmative
Addl.Issue No.1 : In the Affirmative
Issue No.8 : As per the final order
25 O.S.8044/2014
for the following:
REASONS
11. Issue No.1, 3, 4 & Addl. Issue No. 1: All these
issues are taken up together for discussion for the sake of convenience and in order to avoid repetition of facts and evidence.
12. The plaintiff has filed this suit against the defendant praying to declare the plaintiff as the absolute owner of the suit schedule property and consequently direct the defendant to quit, vacate and deliver the vacant possession of the suit schedule property to the plaintiff and to direct the defendant to pay a sum of Rs.5,000/- per month for his illegal and unauthorised occupation of the schedule premises from the date of suit till delivery of possession. The suit 26 O.S.8044/2014 schedule property is the part and parcel of the property bearing No. 30 (old No. 67), Basavaraj Lane, Cottonpet cross, Bangalore - 5609043 measuring east to west 11'.6'', north to south 26'6'' in all 258.75 square feet together with old Madras terrace and mud roof building bounded towards east by private property, west by common passage and property of Narayanamma, north by remaining property No. 67, bequeathed to Nagaraj, south by Govindaraju. Prior to proceed further it is important to note some of the undisputed facts in this suit. It is not in dispute that the suit schedule property along with other property was originally belongs to one P.N.Ramaiah @ Chikka Ramaiah and he has bequeathed the property belongs to him to his two wives Lakshmidevamma and Sakamma vide 'Will' dated 16.8.1961. It is undisputed 27 O.S.8044/2014 fact that Lakshmidevamma and Sakamma had no issues. After the death of Sakamma, Lakshmidevamma has succeeded to the said property. It is not in dispute that Lakshmidevamma has bequeathed the property in favour of her brother Setty Srinivasaiah, Ashwathnarayana S/o Setty Chennappa and Muniyappa and Nagaraj S/o S.Venkateshaiah vide registered 'Will' dated 19.3.1995. It is undisputed fact that under the said 'Will' Lakshmidevamma has bequeathed the suit schedule property in favour of Setty Srinivasaiah. It is undisputed fact that Setty Srinivasaiah has passed away leaving behind his children S.Sathya Narayana, Ananda Shetty, Muralidhara, Govindaraju, Umadevi, Padmavathi, Vanajakshi and Saraswathi. It is undisputed fact that the defendant has filed suit in O.S.No.1974/2014 against the present plaintiff for the 28 O.S.8044/2014 relief of permanent injunction with respect to this suit schedule property. It is undisputed fact that the plaintiff has also filed another suit in O.S.No.5144/2014 against the plaintiff, Rajashekar and BBMP for the relief of permanent injunction. It is undisputed fact that the defendant had filed another suit in P.Misc.No.23/2010 on 16.6.2010 claiming that he is the absolute owner of the suit schedule property by way of adverse possession. Even though the defendant has not specifically stated about the original suit of P.Misc.No.23/2010 but the record of this suit, i.e., I.A.No.3 filed in this suit under section 10 r/w 151 C.P.C. filed by the defendant would indicate that the case in P.Misc.No.23/2010 was allowed and the present defendant was permitted to sue as indigent person and thereafter the said P.Misc.No.23/2010 29 O.S.8044/2014 registered as O.S.No.5167/2015. The plaintiff has produced the certified copy of order sheet, plaint and written statement of O.S.No.1974/2014 which is marked as Ex.P7. The plaintiff has produced the certified copy of order sheet, plaint and written statement of O.S.No.5144/2014 which is marked as Ex.P8. During the course of cross-examination of DW1 the document Ex.P9 judgment and decree passed in O.S.No.1974/2014 is marked. During the course of arguments on the side of the learned counsel for the plaintiff he has produced the downloaded copy of judgment in O.S.No.5167/2015 dated 26.2.2019. On perusal of the document Ex.P9 judgment in O.S.No.1974/2014 filed by the present defendant S.M.Shivashankar against the present plaintiff B.Narayana for the relief of permanent injunction came to be dismissed on 12.3.2019 by imposing 30 O.S.8044/2014 compensatory cost of Rs.5,000/-. On perusal of the copy of the judgment in O.S.No.5167/2015 filed by the present defendant S.M.Shivashankar against S.Sathya Narayana, S.Murali and S.Govindaraju who are all sons of Srinivasaiah for the relief of declaration to declare him as the absolute owner of the suit schedule property by way of adverse possession came to be dismissed on 26.2.2019. The defendant S.Sathya Narayana, S.Murali and S.Govindaraju are none other than the children of Setty Srinivasaiah. Even though this judgment copy in O.S.No.5167/2015 is not marked in this suit but it can be relied because it is an official document and downloaded copy from web of the concerned court. More than that there is no dispute regarding filing of P.Misc.23/2010 which was subsequently converted as O.S.No.5167/2015. In the 31 O.S.8044/2014 oral evidence of DW1 he has taken contention that since the plaintiff has purchased the suit schedule property during the pendency of P.Misc.23/2010 the suit of the plaintiff is hit by the principles of resjudicata. Since the suit in O.S.No.5167/2015 filed by the present defendant for the relief of declaration to declare him as the owner by way of adverse possession is already dismissed by the Hon'ble 15 th Additional City Civil and Sessions Court, CCH-3, the contention of the defendant regarding adverse possession is not available against the original owner Setty Srinivasaiah and their children.
13. In this suit the plaintiff has taken contention that he is the absolute owner of the suit schedule property as he purchased the suit schedule property from H.B.Rajashekar under registered sale deed dated 32 O.S.8044/2014 21.2.2014. It is the contention of the plaintiff is that his vendor H.B.Rajashekar purchased the suit schedule property from the children of Setty Srinivasaiah under registered sale deed dated 10.4.2007. It is the contention of the plaintiff is that after he purchased the suit schedule property from H.B.Rajashekar on the application made by the plaintiff to the BBMP the Khatha has been changed in his name. It is the contention of the plaintiff is that the defendant is utter stranger to the suit schedule property and at no point of time the defendant or his family members were residing in the suit schedule premises in any capacity either permissive possession. It is the contention of the plaintiff is that the defendant was residing in the adjacent premises in the absence of the plaintiff's vendor the defendant has trespassed into the house by 33 O.S.8044/2014 breaking upon the lock and filed O.S.No.1974/2014 for the relief of permanent injunction against the plaintiff. The plaintiff has obtained some documents by giving false information to the government authorities viz., household ration card, voters list, driving licence, etc., and considering the fact that he was residing adjacent to the suit schedule property. On the other hand the defendant has taken specific contention that he along with his parents was / is residing in the suit schedule property by birth. It is the contention of the defendant is that he was born on 15.10.1983. Even prior to execution of registered 'Will' by Lakshmidevamma in favour of Setty Srinivasaiah he was in possession and enjoyment of the suit schedule property along with his parents. He has taken contention that he has perfected his title over the suit 34 O.S.8044/2014 schedule property by way of adverse possession as he is in possession of the suit schedule property for more than 37 years. He has taken contention that he is enjoying the suit schedule property by way of adverse possession against the true owners, i.e., against Setty Srinivasaiah, against his legal representatives and against H.G.Rajashekar and also against the plaintiff. The defendant has also taken contention that since the plaintiff, his vendors have not filed the suit within 12 years. The suit filed by the plaintiff is barred by law of limitation. It is also contention of the plaintiff is that since the plaintiff purchased the suit schedule property during the pendency of the suit filed by the present defendant and the plaintiff has not obtained necessary permission from the court to purchase the 35 O.S.8044/2014 suit schedule property. Hence the sale deed secured by the plaintiff is a void document.
14. Under issue No. 1 this court has to give finding whether the plaintiff proves his right and title over the suit schedule property under additional issue No. 1 the plaintiff has to prove that the defendant is a trespasser and the possession over the suit schedule property is illegal one. Issue No. 3 is framed casting burden upon the defendant to prove the contents of para No. 2 to 5 of his written statement. In para No. 3 the defendant has taken contention that he is in possession of the suit schedule property by birth and continued in possession uninterruptedly. It is also contended that late Setty Srinivasaiah's legal representatives namely Sathya Narayana S, S.Murali and S.Govindaraju did not exercise their right over the suit schedule property. 36 O.S.8044/2014 But on 24.5.2015 the legal heirs of Setty Srinivasaiah tried to interfere with the suit schedule property and tried to get the possession from the defendant. Hence the defendant has filed the suit for declaration praying to declare him as the owner of the suit schedule property by way of adverse possession. It is the contention of the defendant is that when the suit of the defendant for the relief of adverse possession was pending the plaintiff of the present suit secured sale deed from H.B.Rajashekar vide sale deed dated 21.2.2014. It is also the contention of the defendant is that immediately he has also filed suit against the present plaintiff for the relief of permanent injunction in O.S.No.1974/2014. In para No. 4 of the written statement the defendant has taken contention that till 7.3.2014 he was not having knowledge about the 37 O.S.8044/2014 plaintiff purchased the suit schedule property from H.B.Rajashekar. In para No. 5 of the written statement the defendant has taken contention that the plaintiff in this suit and his vendor namely H.B.Rajashekar have stepped into the shoes of original owners namely S.Sathya Narayana, S.Murali, S.Govindaraju. It is the contention of the defendant is that against the original owners namely S.Sathya Narayana, S.Murali, and S.Govindaraju he has filed this suit claiming his ownership by way of adverse possession and since the present plaintiff has purchased the suit schedule property during the pendency of this suit. The very purchaser of the property by the plaintiff from H.B.Rajashekar is hit by the principles of lis pendency. Thus on perusal of para No. 3 to 5 of the written statement contentions the defendant has taken 38 O.S.8044/2014 contention that he has become the absolute owner of the suit schedule property by way of adverse possession and he has also taken contention that since the plaintiff had purchased the suit schedule property during the pendency of the suit filed against the original owners S.Sathya Narayana, S.Murali, S.Govindaraju for the relief of adverse possession the suit of the plaintiff is hit by principles of lis pendency and also taken contention regarding he had filed the suit in O.S.No.1974/2014 against the present plaintiff. I have already made note about the disposal of the suits in O.S.No.1974/2014 filed by the present defendant against the present plaintiff which came to be dismissed with cost of Rs.5,000/-. I have also noted about the dismissal of the suit in O.S.No.5167/2015 filed by the present defendant 39 O.S.8044/2014 against S.Sathya Narayana, S.Murali and S.Govindaraju for the relief of declaration of ownership by way of adverse possession. Thus one thing is very clear that all the earlier suits i.e., suit in O.S.No.1974/2014, O.S.No.5144/2014 and O.S.No.5167/2015 filed by the present defendant came to be dismissed. There is no document on the side of the defendant to show that there is any other suits which are pending between him and the plaintiff or others with respect to the suit schedule property. Issue No. 4 is framed regarding the limitation. Now I would like to discuss firstly about whether the defendant perfected his title over the suit schedule property by way of adverse possession and secondly with regarding to limitation. During the course of arguments both the learned counsel for the plaintiff as well as the learned counsel for the 40 O.S.8044/2014 defendant submitted that Article 65 of the Limitation Act would applies to this suit as the defendant has taken the plea of adverse possession. It is important to note regarding Article 65 of Limitation Act. Chapter No. 5 of the Limitation Act deals with suit relating to immovable property. Article 65 deals with suits for possession of immovable property based on title, the period of limitation prescribed is 12 years from the date when the possession of the defendant becomes adverse to the plaintiff.
15. The learned counsel for the plaintiff has relied on the decision reported in ILR 2014 Kar 4726 Janatha Dal Party, Bangalore Vs. Indian National Congress and others, wherein the Hon'ble High Court of Karnataka elaborately discussed about the points to be considered while dealing with the claims of adverse possession. 41 O.S.8044/2014 In para 119 of this judgment in page No. 4864 and 4865 the Hon'ble High Court of Karnataka has said that a person who claims adverse possession should show,
(a) On what date he came into possession,
(b) What was the nature of his possession,
(c) Whether the factum of possession was known to the other party,
(d) How long his possession is continued and
(e) His possession was open, continuous and undisturbed.
16. It is also held that the person pleading adverse possession has no equities in his favour because adverse possession is commenced in wrong and is aimed against right since he is trying to defeat the 42 O.S.8044/2014 rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. It is also held that once a suit for recovery of possession is instituted against the defendant in adverse possession his adverse possession does not continue thereafter, in other words the running of time for acquiring title by adverse possession gets arrested. It is also held that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and impounded to denial of his title to the property claimed for deciding whether the alleged acts of a person constitute adverse possession the animus of the person doing those acts is the most crucial factor.
43 O.S.8044/2014
17. The learned counsel for the plaintiff relied upon the decision of Hon'ble Supreme Court in Civil Appeal No.5779/2021 wherein it is held that care taker / servant can never acquire interest in the property irrespective of his long possession.
18. On the other hand the learned counsel for the defendant relied upon the judgment of Hon'ble Supreme Court reported in AIR 2019 SC 3827 in Ravinder Kaur Graval and others Vs. Manjith Kaur and others wherein it is held that person perfected title by virtue of adverse possession can maintain suit under Article 65. It is held 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 adverse possession can file a suit for 44 O.S.8044/2014 restoration of possession in case of dispossession. Further held that in case of rightful owner does not come forward within the period of limitation as right is lost and the possessory owner acquires the absolute title. The learned counsel for the defendant relied upon the judgment of Hon'ble Supreme Court reported in AIR 1968 SC 1165 in Nair Services Society Limited Vs. K.C.Alexander and others, wherein it is held that Article 64 enables the suit within 12 years from dispossession, for possession of immovable property based on previous possession and not on title, when the plaintiff while in possession of the property has been dispossessed. Article 65 is for possession of immovable property or any interest therein based on title.
45 O.S.8044/2014
19. The learned counsel for the defendant relied upon the decision of Hon'ble Supreme Court reported in AIR 2004 SC 5113 Tej Narain and another Vs. Shanthi Swaroop Bore and another, wherein it is held that the Predecessor of the defendant had taken forcible possession of house in question in the year 1929 established by documentary evidence as well as oral evidence - thereafter defendants were in continuous possession - suit for possession by plaintiffs in the year 1955 - barred by limitation - defendants can be said to have perfected title by way of adverse possession.
20. The learned counsel for the defendant relied upon the decision of Hon'ble Supreme Court which is reported in AIR 2004 SC 1893 Vasanti Ben Prahalad Naik Vs. Somnath Munji and others to contend that 46 O.S.8044/2014 starting point of limitation - commences from the date when defendants possession becomes adverse and not from the date when right of ownership arises to plaintiff - plaintiff becoming owner of suit property as reversioners after partition - over defendants in possession of said property since long back and paying revenue cess, property tax, etc., - their names were recorded in the revenue records and were granted permission by panchayat to construct compound wall - defendants proving hostile contention, long and uninterrupted possession and exercise of right of exclusive ownership openly and to the knowledge of owner - they perfected title by adverse possession as limitation period was to be counted from the date of their possession and not from the date the plaintiff acquires title.
47 O.S.8044/2014
21. The learned counsel for the defendant relied upon the decision of Hon'ble Supreme Court reported in AIR 1979 SC 1142 Padmini Bai Vs. Thangavva and others to contend that suit for recovery of possession - plaintiffs husband was in exclusive and open possession of suit lands adversely to defendant for a period exceeding 12 years and his possession was never interrupted or disturbed - held - that he acquires ownership by prescription - suit filed within 12 years of his death was within time.
22. The learned counsel for the defendant relied upon the Hon'ble Supreme Court which is reported in AIR 2003 SC 1905 Bondar Singh and others Vs. Nihal Singh and others to contend that plaintiffs claiming title over suit land by adverse possession - plea of plaintiffs that they were in possession of suit land by 48 O.S.8044/2014 virtue of unregistered, unstamped sale deed, executed in favour of their predecessor in interest - defendants alleging that plaintiffs were trespassers over admitting their possession since life time of their father, - order of Revenue Authority also establishing possession of plaintiffs for land 26, 27 years - claim of defendant regarding taking over of possession from plaintiff found to be false - plaintiffs in hostile, continuous possession
- adverse possession proved.
23. The learned counsel for the defendant relied upon the decision reported in ILR 1996 Kar 1340 to contend that section 27 of Limitation Act - Exception of general principle, limitation bars remedy but does not extinguish right, under section 27 there being cause of action to file suit for possession, if suit not 49 O.S.8044/2014 filed within limitation period right also stands extinguished.
24. From the aforesaid judgment it is clear that once the plaintiff proves his title the burden shifts to the defendant to establish that he has perfected his title by adverse possession. In terms of Article 65 the starting point of limitation does not commences from the date when the right of ownership arises to the plaintiff but commences from the date defendants possession becomes adverse. Therefore when possession can be said to be adverse is the moot point. In order to find out whether the defendant has perfected his title by way of adverse possession as contended by him this court has to verify the oral and documentary evidence produced by both the parties. 50 O.S.8044/2014
25. The plaintiff who has examined as PW1 in his examination-in-chief has reiterated the plaint averments by deposing that he is the absolute owner in possession and enjoyment of the suit schedule property having acquired the same from H.B.Rajashekar under registered sale deed dated 21.2.2014. PW1 has deposed that the suit schedule property and other properties was originally belongs to one P.N.Ramaiah @ Chikka Ramaiah who bequeathed the properties belonging to him to his two wives Lakshmidevamma and Sakamma vide 'Will' dated 16.8.1961. He states that Lakshmidevamma and Sakamma have no issues. After the death of Sakamma Lakshmidevamma has succeeded to the said property. She was residing in the premises right from the date of marriage and she was paying taxes to the then Bangalore City 51 O.S.8044/2014 Corporation and the Khatha stood in her name. Since she was aged and she has no male issues she has bequeathed the property in favour of her brother Setty Srinivasaiah, Ashwath Narayana S/o Shetty Chennappa, Muniyappa and Nagaraj S/o S.Venkateshaiah, under registered 'Will'. PW1 has deposed that Lakshmidevamma has bequeathed the suit schedule property in favour of Setty Srinivasaiah. The Khatha has been changed to the names of the legatees. Setty Srinivasaiah died leaving behind his children S.Sathya Narayana, Ananda Shetty, Muralidhara, Govindaraju, Umadevi, Padmavathi, Vanajakshi and Saraswathi. The property which was bequeathed in favour of Setty Srinivasaiah were in physical possession and enjoyment of his children. They were sold this property in favour of H.G.Rajashekar under registered sale deed dated 52 O.S.8044/2014 10.4.2007 and put the purchaser in physical possession of the property. PW1 has deposed that said H.G.Rajashekar who was in possession of the suit schedule property has sold this property in his favour on 21.2.2014 under registered sale deed. Thereafter the Khatha of the suit schedule property changed in his name. PW1 has deposed that in the absence of his vendor the defendant has trespassed into the house by breaking open the lock and filed the suit in O.S.No.1974/2014 for the relief of permanent injunction against him. He has deposed about the filing of the suit in P.Misc.23/2010, O.S.No.5144/2014 and O.S.No.1974/2014 by the present defendant. PW1 has deposed that the defendant who is the land graber has trespassed into the suit schedule property during the absence of H.G.Rajashekar by breaking open the lock 53 O.S.8044/2014 and thereafter he has filed suit in O.S.No.1974/2014 and also filed suit in P.Misc.23/2010 by suppressing the real facts and without impleading true and lawful owner as a party. Hence he has filed this suit for recovery of possession from unauthorised occupant, i.e., defendant of the suit schedule property. The document Ex.P1 to Ex.P8 are marked through PW1. Ex.P1 is the certified copy of the sale deed dated 21.2.2014 executed by H.G.Rajashekar in favour of plaintiff with respect to the suit schedule property. Ex.P2 is the certified copy of registered sale deed dated 10.4.2007 executed by the children of late Setty Srinivasaiah in favour of H.G.Rajashekar (vendor of plaintiff). Ex.P3 is the certified copy of Memorandum of deposit of title deeds to show that the plaintiff had obtained loan from Veerashaiva Sahakara Bank Limited 54 O.S.8044/2014 by mortgaging title deeds of the suit schedule property. Ex.P4 is the property tax paid receipt having paid the tax for the year 2017-18 to the suit schedule property by the plaintiff. Ex.P5 is the Khatha extract of 2017 of the suit schedule property standing in the name of plaintiff. Ex.P6 is the Khatha certificate dated 25.4.2017 of the suit schedule property standing in the name of plaintiff, Ex.P7 is the certified copy of order sheet, plaint and written statement of O.S.No.1974/2014, Ex.P8 is the certified copy of order sheet , plaint and written statement of O.S.No.5144/2014, Ex.P9 is the certified copy of judgment of O.S.No.1974/2014.
26. During the course of cross-examination of PW1 he has admitted the suggestion that as on the date of filing of this suit he was not in possession of the suit 55 O.S.8044/2014 schedule property. He has also admitted the suggestion that when he purchased the suit schedule property H.G.Rajashekar was not in possession of the suit schedule property. He has denied the suggestion that even though as on the date of his purchase the suit schedule property i.e., on 21.2.2014 the defendant was in possession of the suit schedule property. The defendant was not in possession of the suit schedule property on that date. He has deposed that he was not enquired regarding any pendency of the case as on the date on which he purchased the suit schedule property. He has denied the suggestion that his vendor H.G.Rajashekar had no saleable right to alienate the suit schedule property in his favour. He has admitted the suggestion that at the time of purchase of the suit schedule property the case in P.Misc. 23/2010 56 O.S.8044/2014 was pending. He has admitted the suggestion that he was not issued any legal notice to the defendant claiming damages and calling upon him to deliver the possession of the suit schedule property. He has denied the suggestion that the defendant is in possession of the suit schedule property from his birth as absolute owner of the suit schedule property.
27. PW1 in his affidavit for further examination-in- chief has deposed that the defendant is in illegal possession over his property.
28. The defendant who has examined as DW1 in his examination-in-chief has reiterated the written statement contentions by deposing that his birth took place in the suit schedule property and from the date of his birth he is residing in the suit schedule property along with his parents. He states that 57 O.S.8044/2014 Lakshmidevamma executed 'Will' dated 19.9.1995 bequeathing the suit schedule property in favour of Setty Srinivasaiah and thereby Setty Srinivasaiah has become the owner of the suit schedule property. Though Setty Srinivasaiah became the owner of suit schedule property the said Setty Srinivasaiah or his legal representatives never came to the possession of the suit schedule property and they were not residing in the suit schedule property. He states that he was born on 15.10.1983 even prior to execution of registered 'Will' by Lakshmidevamma in favour of Setty Srinivasaiah and he was in possession and enjoyment of the suit schedule property along with his parents. He states that at no point of time Setty Srinivasaiah and his legal representatives were in possession of the suit schedule property. He states that as the legal 58 O.S.8044/2014 representatives of Setty Srinivasaiah tried to interfere with his possession over the suit schedule property and tried to take possession of the suit schedule property illegally, hence he had filed a suit against them for the relief of declaration of ownership by way of adverse possession and also filed another suit in O.S.No.1974/2014 for the relief of permanent injunction against the present plaintiff. He states that the suit filed by him for permanent injunction dismissed by this court on some technical grounds. However there is no any finding against him regarding his physical possession of the suit schedule property. He has deposed that plaintiffs vendor H.G.Rajashekar has stepped into shoes of legal representatives of Setty Srinivasaiah. In turn H.G. Rajashekar sold the suit property in favour of the plaintiff. He states that the 59 O.S.8044/2014 very purchase of the property from H.G.Rajashekar by this plaintiff is hit by the principles of lis pendency as there was a suit pending which was filed by him. He states that he is in possession of the suit schedule property for more than 37 years and he has enjoyed the suit schedule property by way of adverse possession against true owners, i.e., against Setty Srinivasaiah, against his legal representatives and against H.G.Rajashekar and also against the plaintiff. He has deposed that he did not break open the lock of suit schedule property and did not trespass into the suit schedule property. However he is in possession and enjoyment of suit schedule property from his birth. He has deposed that the plaintiff at no point of time came into the possession and enjoyment of the suit schedule property as its owner. The documents Ex.D1 to Ex.D7 60 O.S.8044/2014 are marked on the side of the defendant. Ex.D1 is the Aadhar card of his mother, Ex.D2 is the Aadhar card of his father, Ex.D3 is the election ID card of his father, Ex.D4 is the Election ID card of his mother, Ex.D5 is the ration card of their family, Ex.D6 is the election ID card of DW1, Ex.D7 is the 12 property tax receipt. It is pertinent to note that Ex.D7 is obtained from another suit.
29. During the course of cross-examination of DW1 he has admitted the suggestion that the suit in O.S.No. 1974/2014 dismissed with cost of Rs.5,000/-. He has identified the certified copy of judgment in O.S.No.1974/2014 which is marked at Ex.P9. He claims that the Khatha of the suit schedule property is standing in his name. He has admitted the suggestion that by challenging the Khatha in the name of plaintiff 61 O.S.8044/2014 he has filed suit against the plaintiff. He pleaded his ignorance that the said suit was dismissed. He states that Lakshmidevamma is his grand mother. He has admitted the suggestion that Lakshmidevamma executed the 'Will' in favour of his father and his uncle and grand father. He states that Lakshmidevamma died on 29.7.1995. He has deposed that under the 'Will' Lakshmidevamma bequeathed the properties in favour of Nagaraju, Muniyappa and Ashwathnarayana. He has admitted the suggestion that the suit schedule property and other properties are all originally belongs to Lakshmidevamma. He states that towards northern side of the suit schedule property there exists property belongs to Nagaraju. He admitted the suggestion that in the 'Will' executed by Lakshmidevamma his father's name is also mentioned. He has admitted the 62 O.S.8044/2014 suggestion that he and his family members, his parents are residing in the house which was bequeathed by Lakshmidevamma in favour of his father Muniyappa. He has denied the suggestion that by taking advantage of they are residing by the side of suit schedule property he trespassed into the suit schedule property. He states that in the property bequeathed to Nagaraju also they are in possession. He states that there exists only one electricity meter for 4 properties mentioned in the 'Will'. The suit schedule properties electricity bill comes in the name of his father. He pleaded his unawareness to the suggestion that legal heirs of Setty Srinivasaiah sold the suit schedule property in favour of Rajashekar on 10.4.2007. He pleaded his unawareness about the suggestion that Rajashekar has sold the suit schedule property in favour of the 63 O.S.8044/2014 plaintiff. He admitted the suggestion that he has filed the objection to the BBMP while the plaintiff filed application for change of Khatha of the suit schedule property. He has denied the suggestion that even though the legal heirs of Setty Srinivasaiah not come near the suit schedule property on 24.5.2015 he has filed false suit against them. He has pleaded his ignorance to the suggestion that except this suit no other suits are pending with respect to the suit schedule property. He states that he do not know the result of P.Misc. Case.
30. DW2 is the father of DW1 has deposed that his son defendant born in the suit schedule property on 15.10.1983. He states that neither the plaintiff nor his vendor H.G.Rajashekar nor the legal heirs of Setty Srinivasaiah or Setty Srinivasaiah were in possession of 64 O.S.8044/2014 the suit schedule property. He states that he along with his wife and children were / are in physical possession and enjoyment of the suit schedule property ever since from the birth of the defendant he states that he, his wife, his elder son, defendant were / are in continuously uninterruptedly enjoying the suit schedule property as its owners. He states that he and his family members did not trespass into the suit schedule property by breaking open the lock. However as stated above from the birth of the defendant he along with his wife and children are in possession of the suit schedule property.
31. During the course of cross-examination of DW2 he has admitted the suggestion that his son defendant filed two suits. He has deposed that he do not know in whose name the Khatha of the suit schedule 65 O.S.8044/2014 property is standing. He has admitted the suggestion that Lakshmidevamma executed the 'Will' in favour of Setty Srinivasaiah. He has admitted the suggestion that as per the 'Will' executed by Lakshmidevamma the Khatha of the property changed in the names of propounders. He has admitted the suggestion that Khatha of the suit schedule property was changed in the name of Setty Srinivasaiah. He has pleaded his ignorance to the suggestion that after the death of Setty Srinivasaiah his legal heirs were changed the Khatha of the suit schedule property in their name. He pleaded his ignorance to the suggestion that the legal heirs of Setty Srinivasaiah sold the suit schedule property in favour of Rajashekar. He has also pleaded his ignorance to the suggestion that the suit schedule property was purchased by the plaintiff from 66 O.S.8044/2014 Rajashekar and thereafter Khatha was changed in his name. He claims that as they are residing in the suit schedule property for more than 40 years they became the absolute owner of the suit schedule property.
32. DW3 witness on the side of the defendant has deposed that he is the neighbour of the suit schedule property. He states that the defendant from his childhood is residing in the suit schedule property along with his parents and the defendant and his parents are in occupation and enjoyment of the suit schedule property from the past 35 years as its owners. During the course of cross-examination of DW3 he has deposed that towards northern side of the suit schedule property there exists house of Nagaraj. He states that his house is situated towards western side of the suit schedule property. He states that he is the 67 O.S.8044/2014 relative of the defendant. He states that Setty Srinivasaiah is his grand father.
33. The learned counsel for the plaintiff argued that the defendant has taken inconsistent defence. At one stretch the defendant has taken contention that he is the absolute owner of the suit schedule property and in another stretch contended that he perfected the title over the suit schedule property by way of adverse possession. He argued that the defendant cannot take plea of adverse possession without admitting the title of the plaintiff and his vendor. He argued that the defendant himself admitted the fact that Setty Srinivasaiah was the owner of the suit schedule property. He argued that after the death of Setty Srinivasaiah his legal heirs were sold the suit schedule property in favour of plaintiff's vendor H.G.Rajashekar, 68 O.S.8044/2014 thereby the plaintiff became the absolute owner of the suit schedule property as the plaintiff purchased the suit schedule property from H.G.Rajashekar under registered sale deed dated 21.2.2014. He argued that there is no evidence on the side of the defendant to show that the defendant has perfected the title by way of adverse possession. He argued that the earlier suit filed by the defendant in O.S.No.1974/2014 came to be dismissed by holding that the present defendant was not in possession of the suit schedule property. He argued that the suit filed by the defendant in O.S.No.5167/2015 against the children of Setty Srinivasaiah for the relief of adverse possession also came to be dismissed. Hence now the defendant is estopped from claiming adverse possession. He argued that the defendant who is claiming adverse possession 69 O.S.8044/2014 must admit the ownership of the plaintiff over the suit schedule property but in this suit the defendant without admitting the ownership of the plaintiffs over the suit schedule property claiming that he has acquired the title by way of adverse possession. On the other hand the learned counsel for the defendant argued that PW1 in his cross-examination admitted the suggestion that he was not in possession of the suit schedule property as on the date of purchase. His vendor H.G.Rajashekar was also not in possession of the suit schedule property. His vendor's vendor Setty Srinivasaiah and his children were also not in possession of the suit schedule property. He argued that the very admission given by PW1 that PW1 and his vendor and vendor's vendor were not in possession of the suit schedule property is sufficient to hold that 70 O.S.8044/2014 the defendant from his birth is in possession of the suit schedule property. He argued that during the course of cross-examination of DW1 to DW3 nothing is elicited from their mouth denying their version regarding the defendant's possession over the suit schedule property from his birth, i.e., from 15.10.1983. He has relied upon the decision reported in 1983 CLJ 1694 to contend that statement of fact made by the witness - not challenging in cross-examination - fact in question must be held to be not disputed. He relied upon the decision reported in AIR 1959 AP 272 to contend that if there is anything in a witness statement which is disputed and the opponent avoids asking question of those matters in cross-examination the evidence in chief-examination must be accepted unless ofcourse they are inherent improbabilities. He relied upon the 71 O.S.8044/2014 decision reported in AIR 1983 Calcutta 337 to contend that examination-in-chief of plaintiffs witness on point in dispute - no cross-examination proved on the point
- court can hold that defendant accepts plaintiffs case on the point in entirety - no dispute on the point can be raised in arguments. He relied upon the decision of Hon'ble Supreme Court which is reported in AIR 1981 SC 2085 wherein it is held that admission, unless explained, furnishes the best evidence. He relied upon the decision reported in AIR 1971 Delhi 316 to contend that the Specific Relief Act section 5 - a person must be in possession - a person entitled to get possession must prove that he was in possession before the alleged trespasser got into possession. He relied upon the decision reported in AIR 1976 Rajasthan 108 to contend that claim based on anterior possession - mere 72 O.S.8044/2014 allegation without proof of actual possession not enough. He relied upon the decision reported in AIR 1990 MP 348 to contend that suit for restoration of possession of permanent injunction - can succeed by proving continuous possession prior to its possession - it is not necessary to establish title.
34. I have appreciated the rival contentions. No doubt in the cross-examination of PW1 he has admitted the suggestion that as on the date he purchased the suit schedule property his vendor H.G.Rajashekar was not in possession of the suit schedule property. PW1 has also admitted the suggestion that Setty Srinivasaiah and his children were not in possession of the suit schedule property. Merely because PW1 has admitted the suggestion that his vendor H.G.Rajashekar and his vendor's vendor Setty Srinivasaiah children were not in 73 O.S.8044/2014 possession of the suit schedule property, tt does not pre-supposes that the suit schedule property was in possession of the defendant at that point of time. It is pertinent to note that the suit filed by the present defendant against the present plaintiff in O.S.No.1974/2014 came to be dismissed on 12.3.2019 by imposing compensatory cost of Rs.5,000/-. On perusal of the document Ex.P9 judgment in O.S.No.1974/2014 it shows that it was instituted on 11.3.2014. In that suit three issues were framed as usually framing in injunction suit. First issue is with regarding to whether the plaintiff proves that he is in lawful possession of the suit schedule property as on the date of the suit. Second issue is with regarding to alleged interference of the defendant, third issue with regarding to entitlement for the relief of permanent 74 O.S.8044/2014 injunction. The Hon'ble 24 th ACC & SC (CCH-6) was pleased to answer all the three issues in the Negative and held that the plaintiff failed to prove his lawful possession over the suit schedule property as on the date of filing of that suit. Ultimately the suit in O.S.No.1974/2014 came to be dismissed. It is not the contention of the present defendant is that he has challenged the judgment and decree passed in O.S.No.1974/2014. Thus the finding given in O.S.No.1974/2014 attained its finality. Thus the contention of the defendant regarding his continuous possession over the suit schedule property negatived in the judgment in O.S.No.1974/2014. The document Ex.P8 order sheet in O.S.No.5144/2014 would go to show that that suit also dismissed on 25.11.2015 as withdrawn. The learned counsel for the plaintiff also 75 O.S.8044/2014 produced the down loaded copy of the judgment in O.S.No.5167/2015 filed by the present defendant seeking for the relief of ownership by way of adverse possession against S.Sathyanarayana, S.Murali, S.Govindaraju who are sons of Setty Srinivasaiah. The said suit in O.S.No.5167/2015 also came to be dismissed. It is not the contention of the defendant is that he has challenged the judgment and decree passed in O.S.No.5167/2015. Hence once the court held that the present defendant failed to prove that he has perfected the title by way of adverse possession against the children of Setty Srinivasaiah now the defendant is debarred from claiming that he has perfected the title by way of adverse possession. Even if it is assumed that the present plaintiff not being the party in O.S.No.5167/2015 and any finding in that suit does not 76 O.S.8044/2014 binds on the present suit, in this suit also the defendant must prove that he was in possession of the suit schedule property adverse to the interest of the original owners, i.e., Setty Srinivasaiah and his children and subsequent purchasers. Mere possession of the property more than statutory period of 12 years is not sufficient to hold that the defendant has perfected the title by way of adverse possession. It is well settled principle of law that the party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", i.e., possession open and continuous the possession must be adequate in changing any publicity and any extent to show that their possession is adverse to the true owner. In this suit there is no pleading and finding on the side of the defendant to show the starting point of adverse 77 O.S.8044/2014 possession. The defendant has not specifically pleaded the date from which his possession becomes adverse to that of Setty Srinivasaiah, his legal heirs and vendor of the plaintiff and the plaintiff. Merely because the defendant is born in the suit schedule property in the year 1983 cannot be a ground to say that he has perfected his title by way of adverse possession. There is no pleading on the side of the defendant whether they have denied the title of Setty Srinivasaiah during his life time and whether the defendant and his parents continued in possession of the suit schedule property by denying the title of Setty Srinivasaiah and they are legal heirs. Admittedly Lakshmidevamma also bequeathed the property in favour of DW2 who is the father of the defendant. DW1 in his cross-examination admitted the suggestion that Lakshmidevamma 78 O.S.8044/2014 bequeathed the property in favour of Nagaraju, Muniyappa (father of defendant) and Ashwathnarayana. It is also admitted fact that Lakshmidevamma bequeathed the suit schedule property in favour of Setty Srinivasaiah. It is not in dispute that defendant and his parents are residing in the house which was bequeathed by Lakshmidevamma which is situated adjacent to the suit schedule property. DW1 has admitted that there exists property belongs to Nagaraju towards northern side of the suit schedule property. But he has taken contention that he and his parents also are in possession of that property belongs to Nagaraju. That means the defendants are not only contending that they are in possession of the suit schedule property which was bequeathed by Lakshmidevamma in favour of Setty Srinivasaiah but 79 O.S.8044/2014 also they are in possession of the property bequeathed in favour of Nagaraju. The defendant has not produced any revenue documents to show that the Khatha of the suit schedule property was changed in his father's name or in his name. The document Ex.D12 property tax paid receipts are the documents which were produced in previous suit. On perusal of the judgment in O.S.No.1974/2014 the court has already given finding regarding the Aadhar card, voter ID card of the defendant and his parents. The document Ex.D7 12 property tax paid receipts were already marked in some other suit, as there is mark of exhibit in these documents. These documents Ex.D7 were all Kandayam paid receipts paid in the name of Sakamma. DW1 in his cross-examination admitted the suggestion that after the suit schedule property was 80 O.S.8044/2014 bequeathed in the name of Setty Srinivasaiah the Khatha of the property was changed in the name of Setty Srinivasaiah. The plaintiff has produced the document Ex.P4 property tax receipt, Ex.P5 Khatha extract, Ex.P6 Khatha certificate which would go to show that all these documents standing in the name of the plaintiff. The defendant has not produced any document to show that he was paid the property tax in respect of the suit schedule property. Even assuming for a moment on the admission of PW1 in his cross- examination that his vendor was not in possession of the suit schedule property and Setty Srinivasaiah and his children were not in possession of the suit schedule property under such circumstances also it cannot be a ground to say that the defendant was in continuous possession of the suit schedule property by birth. 81 O.S.8044/2014 Admittedly as on the date of the suit the plaintiff was not in possession of the suit schedule property and it was the defendant who was in possession of the suit schedule property. The oral evidence of DW1 to DW3 that the defendant by birth is in possession of the suit schedule property is not sufficient to hold that the defendant has perfected the title over the suit schedule property by way of adverse possession. The very dismissal of the suit in O.S.No.5167/2015 filed by the present defendant against the children of Setty Srinivasaiah for the relief of adverse possession is strengthen the case of the plaintiff. More than that there is no pleading on the side of the defendant to show that from which date they have denied the title of Setty Srinivasaiah or the legal heirs of Setty Srinivasaiah. There is no specific plea raised by the 82 O.S.8044/2014 defendant to show that when the possession of the defendant became adverse to Setty Srinivasaiah or their children or to H.G.Rajashekar and the plaintiff. It is the contention of the plaintiff is that he had purchased the suit schedule property under registered sale deed dated 21.2.2014. It is true that in order to ascertain the claim of adverse possession the limitation period was to be counted from the date when possession became adverse and not from the date the plaintiff acquired title. In this suit the plaintiff has acquired the title over the suit schedule property under registered sale deed dated 21.2.2014. Prior to that the plaintiffs vendor H.G.Rajashekar was purchased the suit schedule property from the children of Setty Srinivasaiah under registered sale deed dated 10.4.2007. Admittedly Setty Srinivasaiah acquired the 83 O.S.8044/2014 suit schedule property under the 'Will' executed by Lakshmidevamma in the year 1995. After the death of Setty Srinivasaiah his children being the legal heirs have succeeded to suit schedule property and thereafter they have sold the suit schedule property in favour of H.G.Rajashekar under registered sale deed dated 10.4.2007. The present defendant without making the purchaser H.G.Rajashekar as a party in P.Misc.No.23/2010 filed the suit against the children of Setty Srinivasaiah for the relief of ownership by way of adverse possession. The judgment passed in O.S.No.5167/2015 would indicates that the said suit also came to be dismissed. The defendant at one stretch has taken contention that as he born in the suit schedule property in the year 1983 he became the absolute owner of the suit schedule property. DW2 84 O.S.8044/2014 who is the father of the defendant has deposed that as he, his wife and children are in possession of the suit schedule property for 40 years they became the absolute owners of the suit schedule property. In another stretch the defendant has taken contention that he has perfected the title over the suit schedule property by way of adverse possession. The defendant cannot take inconsistent plea regarding the ownership by way of adverse possession without admitting the ownership of the plaintiff. Basic ingredient of plea of adverse possession is that one who is taking the contention of adverse possession must admit the ownership of the opposite party. In this suit the defendant has not specifically admitted the ownership of the plaintiff over the suit schedule property. The defendant without pleading when adverse possession is 85 O.S.8044/2014 commenced is claiming that since he is in possession of the suit schedule property by birth he became the owner of the suit schedule property by way of adverse possession. Such contention of the defendant is not sufficient to hold that he has become the owner of the suit schedule property by way of adverse possession. Long possession beyond the statutory period itself is not ripe as adverse possession. In this suit the defendant has not specifically pleaded the date on which the adverse possession started. There is no pleading and evidence on the side of the defendant to show that the defendant had possession of the suit schedule property against the will of Setty Srinivasaiah and their legal heirs. The defendant has taken contention that for the first time the legal heirs of Setty Srinivasaiah came near the suit schedule property 86 O.S.8044/2014 on 24.5.2015 and tried to interfere with the possession of the defendant and tried to dispossess the defendant from the suit schedule property. That means prior to that there was no interference from the legal heirs of Setty Srinivasaiah. To claim the adverse possession there must be animus possidendi that means the possession must be against the will of true owner. In the present suit there is absolutely no evidence on the side of the defendant to show that the defendant was in possession of the suit schedule property against the will of true owner, i.e., Setty Srinivasaiah and his legal heirs. There is no pleading and proof of hostile possession over the period of 12 years. There is no clear evidence on the side of the defendant to show the date of commencement of adverse possession. Under such circumstances merely because the defendant 87 O.S.8044/2014 has born in the suit schedule property it does not pre- supposes that the defendant has become the owner of the suit schedule property by way of adverse possession. Admittedly the property bearing No. 67 was big property. The suit schedule property bearing No. 30 (old No. 67) is only the portion of property No. 67 which was bequeathed by Lakshmidevamma in favour of Setty Srinivasaiah. Lakshmidevamma also bequeathed the remaining portions to DW2 Muniyappa, Nagaraju, Asnwathnarayana. Admittedly the property belongs to Nagaraju is situated towards northern side of the suit schedule property. The defendant who has taken contention that the defendant has become the owner by way of adverse possession has failed to prove the same by giving cogent evidence. Since the defendant has failed to prove the defence of adverse 88 O.S.8044/2014 possession even though defendant found possession more than 12 years the suit filed by the plaintiff for the relief of declaration of ownership and recovery of possession is not barred by period of limitation.
35. The learned counsel for the defendant argued that since the plaintiff has not issued notice under section 106 of T.P.Act, the suit of the plaintiff is not maintainable. He has relied on the judgment reported in AIR 2019 Calcutta 110 between West Bengal State Electricity Board, a body corporate Vs. Sevoke Properties Private Limited to contend that failure of lessor to give quit notice prior to filing of suit for eviction - suit is not maintainable. I have gone through this cited decision. In my humble view the cited decision can be distinguished on facts. The plaintiff has not filed this suit for ejectment. The 89 O.S.8044/2014 plaintiff has filed this suit for the relief of declaration of ownership and for recovery of possession. Under such circumstances it is not required to issue notice under section 106 of T.P.Act as there exists no landlord and tenant relationship between the plaintiff and defendant. Non-issuing of notice prior to filing of this suit is not fatal to the case of the plaintiff.
36. The plaintiff has produced the document Ex.P1 certified copy of the sale deed dated 21.2.2014 to show that he has purchased the suit schedule property from H.G.Rajashekar. The plaintiff has also produced the document Ex.P2 certified copy of the registered sale deed dated 10.4.2007 to show that the plaintiff's vendor H.G.Rajashekar purchased the suit schedule property from the children of Setty Srinivasaiah. The plaintiff has produced the document Ex.P3 90 O.S.8044/2014 Memorandum of Deposit of Title Deed which would go to show that the plaintiff had exercised his ownership right over the suit schedule property by mortgaging the suit schedule property to the Veerashaiva Sahakari Bank Limited. The document Ex.P4 property tax receipt, Ex.P5 Khatha extract, Ex.P6 Khatha certificate would go to show that as per the sale deed dated 21.2.2014 the BBMP transferred the Khatha of the suit schedule property in the name of the plaintiff. Admittedly the suit schedule property was originally belongs to Setty Srinivasaiah as Lakshmidevamma bequeathed the suit schedule property in his favour under registered 'Will'. After the death of Setty Srinivasaiah his legal heirs, children were sold the suit schedule property in favour of H.G.Rajashekar. Thus there is change of ownership of the suit schedule 91 O.S.8044/2014 property by way of registered sale deed in favour of H.G.Rajashekar and in favour of the plaintiff. Thus the plaintiff has become the absolute owner of the suit schedule property. The defendant who has taken contention that he has perfected the title by way of adverse possession has failed to prove the same by giving cogent evidence. The plaintiff has proved his right and title over the suit schedule property. Since the defendant has failed to prove that he has perfected the title over the suit schedule property by way of adverse possession it can be held that the suit of the plaintiff is not barred by period of limitation. The defendant without having any right over the suit schedule property is in possession of the suit schedule property which is nothing but illegal one. In O.S.No.1974/2014 the court held that the present 92 O.S.8044/2014 defendant who was failed to prove his lawful possession over the suit schedule property as on the date of the suit, i.e., on 11.3.2014. In O.S.No.5167/2015 the court held that the present defendant has failed to prove his ownership over the suit schedule property by way of adverse possession. Admittedly in this suit it is found that the defendant is in possession of the suit schedule property as on the date of filing of the suit. The defendant who is not the owner of the suit schedule property can be said that he is a trespasser and his possession is illegal as contended by the plaintiff. The plaintiff has proved his right and title over the suit schedule property. The defendant has failed to prove that he has perfected his title by way of adverse possession. Since the defendant has failed to prove that he has perfected his 93 O.S.8044/2014 title by way of adverse possession this court of the opinion that the suit filed by the plaintiff for the relief of declaration of ownership and for recovery of possession is not barred by period of limitation. Hence I answer issue No. 1 in the Affirmative, issue No. 3 in the Negative, issue No.4 in the Negative and additional issue No.1 in the Affirmative.
37. Issue No. 5: The defendant also contended that the court fee paid on the plaint is insufficient. The plaintiff has filed this suit for the relief of declaration of ownership and for consequential relief of possession and also for the damages at the rate of Rs.5000/- per month for illegal and unauthorised occuation of the suit schedule property by the defendant. In this suit the plaintiff by valuing the relief under section 24(a) of Karnataka Court Fee and Suit Valuation Act and by 94 O.S.8044/2014 valuing the market value of the property at Rs.9,60,000/- paid the court fee of Rs.59,925/-. During the course of cross-examination of PW1 nothing is elicited from his mouth regarding the court fee. DW1 in his examination-in-chief has not deposed anything about the actual market value of the suit schedule property and court fee payable by the plaintiff. During the course of cross-examination of DW1 he pleaded his ignorance to the suggestion that as on the date of filing of this suit the market value of the suit schedule property was Rs.3,60,000/-. It is needless to say that issue of court fee is mixed question of law and facts. In order to prove this issue it is obligatory on the part of the defendant to adduce evidence on his behalf or atleast he ought to have cross examined PW1 on this aspect. But in this suit 95 O.S.8044/2014 neither DW1 has deposed about the actual market value of the suit schedule property as on the date of the suit nor in the cross-examination of PW1 single question was put to him disputing the valuation made by him and attacking the court fee paid. I have gone through the valuation slip enclosed with the plaint. On goiong through the valuation slip the plaintiff has mentioned the market value of the property as Rs.9,60,000/- and the plaintiff by calculating the relief under section 24(a) of the Karnataka Court Fee and Suit Valuation Act paid the court fee of Rs.59,925/-. There is no contrary evidence on the side of the defendant to show that the court fee paid by the plaintiff is insufficient. The defendant has failed to prove this issue. Hence I hold that the court fee paid 96 O.S.8044/2014 by the plaintiff is sufficient. Hence I answer issue No. 5 in the Negative.
38. Issue No. 2, issue No. 6 and issue No. 7: These issues deals with the relief to be granted to the plaintiff as born from the pleadings based on his title the plaintiff is seeking the relief of declaration of his ownership over the suit schedule property and also for the relief of recovery of possession of the suit schedule property from the defendant. The plaintiff has also sought for the damages at the rate of Rs.5,000/- per month for illegal and unauthorised occupation of the suit schedule property by the defendant. In view of my finding on issue No. 1 as the plaintiff proved his right and title over the suit schedule property the plaintiff is entitled for the relief of declaration of ownership. In this suit the defendant has failed to 97 O.S.8044/2014 prove that he has perfected his title by way of adverse possession. Hence the defendant who is a trespasser and who is in illegal possession over the suit schedule property shall handover the suit schedule property to the plaintiff who is the owner of the suit schedule property. PW1 has deposed that since the defendant is in unauthorised occupation of the suit schedule property, hence he is entitled for the damages at the rate of Rs.5,000/- per month for the illegal occupation of the defendant. In this suit the plaintiff has not produced any documents to show that similar property of the suit schedule property would fetches rent of Rs.5,000/- per month or nearer to that within the vicinity of the suit schedule property. During the course of cross-examination of DW1 nothing is elicited from his mouth to show that the suit schedule property 98 O.S.8044/2014 fetches the rent upto Rs.5,000/- per month. During the course of cross-examination of DW1 he pleaded that he did not know to suggest that within the vicinity of the suit schedule property the property like the suit schedule property fetches the rent at the rate of Rs.5,000/- per month. Except the suggestion made to DW1 the plaintiff has not produced any document to show that the similar properties to the suit schedule property or suit schedule property fetches the rent at the rate of Rs.5,000/- per month. It is come in the evidence of PW1 is that at the time of he purchased the suit schedule property his vendor was not in possession of the suit schedule property. It is the case of the plaintiff is that the defendant entered into the suit schedule property by breaking open the door in the absence of the plaintiff's vendor H.G.Rajashekar. 99 O.S.8044/2014 That means according to the plaintiff himself his vendor H.G.Rajashekar was lost the possession of the suit schedule property despite of that the plaintiff has purchased the suit schedule property from H.G.Rajashekar under registered sale deed dated 21.2.2014. No doubt the plaintiff has become the owner of the suit schedule property by virtue of sale deed dated 21.2.2014 and subsequently Khatha of the suit schedule property also changed in the name of the plaintiff. The plaintiff has also the Khatha extract, Khatha certificate, and property tax paid receipt to show that on the strength of the registered sale deed dated 21.2.2014 executed in his favour by H.G.Rajashekar the Khatha of the suit schedule property transferred to the name of the plaintiff. Since there is no cogent evidence on the side of the plaintiff 100 O.S.8044/2014 to show the actual prevailing rent of the suit schedule property or within the vicinity of the suit schedule property the plaintiff is not entitled for the damages at the rate of Rs.5,000/- per month. Looking to the dimension of the suit schedule property and its location awarding of Rs.1,000/- per month from the date of suit till the possession of the suit schedule property to the plaintiff as damages would meets the ends of justice.
39. The plaintiff has proved that he is the absolute owner of the suit schedule property as he purchased the same under registered sale deed dated 21.2.2014 from H.G.Rajashekar. The defendant has no better title muchless any title over the suit schedule property and has no right to continue in possession of the suit schedule property. While discussing additional issue No. 1 this court held that the defendant is a trespasser 101 O.S.8044/2014 and his possession is illegal. Whatever possession or right the defendant had in the suit schedule property came to an end with the filing of this suit. The plaintiff is entitled for the relief of declaration of ownership over the suit schedule property and also entitled for the recovery of vacant possession of the suit schedule property from the defendant. The plaintiff is entitled for the relief of damages at the rate of Rs.1,000/- per month from the defendant for the illegal and unauthorised occupation of the suit schedule property from the defendant. Hence I answer issue No. 2 in the Affirmative, issue No. 6 partly in the Affirmative by holding that the plaintiff is entitled for the damages at the rate of Rs.1,000/- per month, issue No. 7 in the Affirmative by holding that the plaintiff is entitled for the relief of declaration of ownership and 102 O.S.8044/2014 for recovery of possession of the suit schedule property and for damages at the rate of Rs.1,000/- per month from the date of suit.
40. Issue No.8: In view of my findings on the above issues, I proceed to pass the following:
ORDER The suit of the plaintiff is decreed with cost.
It is hereby declared that the plaintiff is the absolute owner of the suit schedule property.
The defendant is directed to quit, vacate and hand over vacant possession of the suit schedule property to the plaintiff within six months from the date of this judgment.103 O.S.8044/2014
The defendant is directed to pay the damages to the plaintiff at the rate of Rs.1,000/- per month from the date of suit till he delivers the vacant possession of the suit schedule property to the plaintiff.
Draw decree accordingly.
(Dictated to the Judgment-Writer, transcribed, computerized and printout taken by her, revised and then pronounced by me in the open court on this the 21st day of October 2021.) (Mohan Prabhu ) XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.
ANNEXURE Witnesses examined for the plaintiff/s :
PW1 - Narayana
Witness examined for the defendant/s :
104 O.S.8044/2014
DW1 - S.M.Shivashankar
DW2 - S.V.Muniyappa @ Muniraju
DW3 - A.Manjunatha
Documents marked for the plaintiff/s :
Ex.P1 - certified copy of sale deed dated
21.2.2014
Ex.P2 - certified copy of sale deed dated
10.4.2003
Ex.P3 - certified copy of Deposit of Title deeds
Ex.P4 - Tax paid receipt computer copy
Ex.P5 - Khatha extract
Ex.P6 - Khatha certificate
Ex.P7 - Certified copy of order sheet, plaint and
written statement in O.S.No.1974/2016. Ex.P8 - certified copy of order sheet, plaint and written statement in O.S.No.5144/2014 Ex.P9 - certified copy of judgment and decree Documents marked for the defendant/s :
Ex.D1 - Aadhar card of mother Ex.D2 - Aadhar card of father 105 O.S.8044/2014 Ex.D3 - Election ID card of father Ex.D4 - Election ID card of mother Ex.D5 - Ration card Ex.D6 - Election ID card Ex.D7 - 12 tax paid receipts (Mohan Prabhu ) XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE. 106 O.S.8044/2014 Judgment pronounced in the open court (vide separate detailed Judgment) ORDER The suit is decreed with cost. It is hereby declared that the plaintiff is the absolute owner of the suit schedule property. The defendant is directed to quit, vacate and had over vacant possession of the suit schedule property to the plaintiff within six months from the date of this judgment. The defendant is directed to pay the damages to the plaintiff at the rate of Rs.1,000/- per month from the date of suit till he delivers the vacant possession of the suit schedule property to the plaintiff. 107 O.S.8044/2014 Draw decree accordingly. XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE. 108 O.S.8044/2014