Karnataka High Court
Devajana Devappa vs Sri S S Prasad on 5 September, 2024
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NC: 2024:KHC:36945
RSA No. 2209 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S. HEMALEKHA
REGULAR SECOND APPEAL NO.2209 OF 2016 (RES)
BETWEEN:
1. DEVAJANA DEVAPPA
S/O. LATE MAHALINGA,
AGED ABOUT 53 YEARS,
2. SMT. D.M. GOPAMMA
W/O. LATE MAHALINGA,
AGED ABOUT 71 YEARS,
BOTH ARE R/AT SAMPAJE VILLAGE,
MADIKERI TALUK-571201.
KODAGU DISTRICT. ... APPELLANTS
(BY SRI PRASAD B.S., ADVOCATE)
AND:
1. SRI S.S. PRASAD
Digitally signed S/O. S.S. SUBRAYA,
by SHYAMALA AGED ABOUT 50 YEARS,
Location: HIGH AJJANAGADDE HOUSE,
COURT OF AMARAPADNUR VILLAGE,
KARNATAKA CHOKKADY POST-574212
SULIA TALUK, D.K. DISTRICT.
2. SRI D.P. SEETHARAMA
S/O. LATE DEVAJANA PARAMESHWARA,
AGED ABOUT 59 YEARS,
SAMPAJE VILLAGE-571201
MADIKERI TALUK,
KODAGU DISTRICT.
3. D.S. POORNIMA
D/O. D.P. SEETHARAMA,
AGED ABOUT 26 YEARS,
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NC: 2024:KHC:36945
RSA No. 2209 of 2016
SAMPAJE VILLAGE,
MADIKERI TALUK-571 201
KODAGU DISTRICT. ... RESPONDENTS
(BY SRI DEEPAK WAGLE, ADVOCATE FOR
SRI KESHAVA BHAT A., ADVOCATE FOR C/R-1)
THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST
THE JUDGMENT & DECREE DATED 07.09.2016 PASSED IN
R.A.NO.84/2011 ON THE FILE OF THE PRL. DISTRICT AND SESSIONS
JUDGE, KODAGU, MADIKERI DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 10.08.2011
PASSED IN O.S.NO.61/2006 ON THE FILE OF THE SENIOR CIVIL
JUDGE, MADIKERI.
THIS APPEAL COMING ON FOR DISMISSAL, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE K.S. HEMALEKHA
ORAL JUDGMENT
Assailing the concurrent finding of facts recorded by the Courts below decreeing the suit of the plaintiff for recovery of possession, defendant Nos.1 and 2 are before this Court in the regular second appeal.
2. Parties herein are referred to as per their rank before the trial Court for the sake of convenience.
3. Suit seeking recovery of possession of the suit schedule properties, stating that the plaintiff purchased the suit schedule properties through a public auction -3- NC: 2024:KHC:36945 RSA No. 2209 of 2016 conducted by Prl. Civil Judge, Madikeri, in Ex. Case No.63/1987 and the sale has been confirmed, sale certificate has been issued on 15.06.1994 and in view of the said purchase, the plaintiff is entitled for possession of the suit schedule properties. The plaintiff filed CMC No.7/2000 in the execution petition under Section 151 read with Order XXI Rule 95 CPC, seeking possession of the suit properties. The said petition was dismissed on 25.05.2005, holding that the petition was barred by time under Article 134 of the Limitation Act, 1963 ('the Act' for short). The plaintiff contended that the suit of the plaintiff seeking possession is maintainable despite dismissal of CMC No.7/2000, as he has filed the suit within limitation.
4. On notice, defendants appeared and filed their written statement admitting the purchase made by the plaintiff under public auction in Ex. Case No.63/1987 and the sale certificate issued, the contention of defendants is that, the defendants have perfected their title by way of adverse possession and the suit is barred by limitation. -4-
NC: 2024:KHC:36945 RSA No. 2209 of 2016
5. Defendant No.3 filed separate written statement contending that the suit is not maintainable, and that the plaintiff is not the absolute owner of the suit properties, the purchase of the property in public auction in Ex.No.63/1987 is not binding on the said defendant, as he is not party to the proceedings and that the suit is barred by limitation.
6. Defendant No.4 filed separate written statement making similar averments as made by defendant Nos.1 to 3.
7. The trial Court, based on the pleadings, framed the following:
"ISSUES:-
1. Whether the plaintiff proves that he is entitled for possession of suit property based on sale confirmation by court in the auction?
2. Whether the plaintiff proves that suit is maintainable though C.M.C.7/2000 dismissed? -5-
NC: 2024:KHC:36945 RSA No. 2209 of 2016
3. Whether the defendants prove that defendants are in joint possession of suit property and there is no identity of suit property?
4. Whether the suit is barred by law of limitation?
5. Whether the suit is bad for non-joinder of necessary party?
6. What decree or order?
Addl.issue:-
1. Whether the defendants No.1 and 2 prove that, they have perfected their title over the suit schedule property by way of adverse possession?"
8. The plaintiff examined himself as PW.1, got marked 21 documents at Exs.P-1 to P-21, defendant No.1 examined himself as DW.1 and got marked documents at Exs.D-1 and D-2.
9. The trial Court, on the basis of the pleadings, oral and documentary evidence, held that, -6- NC: 2024:KHC:36945 RSA No. 2209 of 2016
(i) Plaintiff has proved that he is entitled for possession of the suit property based on the sale confirmation.
(ii) Plaintiff's suit is maintainable even though CMC No.7/2000 was dismissed.
(iii) Defendants have failed to prove that they have perfected their title over the suit schedule properties by way of adverse possession.
(iv) The suit of the plaintiff is not barred by limitation.
10. The trial Court by judgment and decree, decreed the suit directing the defendants to deliver the possession of the suit properties within four months from the date of the order.
11. Aggrieved, the defendants preferred appeal before the first appellate Court, the first appellate Court while re-appreciating and reconsidering the entire oral and documentary evidence independently, concurred with the -7- NC: 2024:KHC:36945 RSA No. 2209 of 2016 judgment and decree of the trial Court. Aggrieved, the defendants are before this Court in this second appeal.
12. Heard Sri Prasad B.S., learned counsel for the appellants and Sri Deepak Wagle for Sri Keshava Bhat A., learned counsel for the respondents.
13. Learned counsel for the appellants submits that the Courts below have failed to appreciate that respondent No.1 - plaintiff, the auction purchaser having exhausted remedy under Order XXI Rule 95 CPC, in view of Article 134 of the Act, the possession of the property having not been recovered within one year from the date of confirmation of sale, which was confirmed on 20.03.1993, and having lost in CMC No.7/2000, the plaintiff's suit is not maintainable.
14. That the appellant having claimed his right by way of adverse possession, the plaintiffs ought to have filed the suit for possession within twelve years from 20.03.1994 i.e., after completion of one year from the -8- NC: 2024:KHC:36945 RSA No. 2209 of 2016 date of sale certificate and the suit is filed only on 20.04.2006, and the suit is barred by limitation. Learned counsel for the appellants submits that there arise substantial questions of law to be framed by this Court in this second appeal.
15. Per contra, learned counsel for the respondents justifying the judgment and decree of the Courts below, would contend that the auction purchaser - plaintiff having failed to seek possession of the properties in the execution proceedings by filing an application under Order XXI Rule 95 CPC in CMC No.7/2000, does not debar the plaintiff from filing the suit for possession.
16. Learned counsel submits that the Article that would be applicable to the present facts is Article 65 of Limitation Act, as the appellants-defendants contended that they have perfected their title by way of adverse possession and the suit of the plaintiff is filed within twelve years. Reliance is placed on the decision of the Co- ordinate Bench of this Court in the case of Sri Abdul -9- NC: 2024:KHC:36945 RSA No. 2209 of 2016 Ubedulla vs. Smt. Noorjahn & others1 (Sri Abdul Ubedulla).
17. This Court has carefully considered the rival contentions urged by the learned counsel for the parties and perused the entire material on record.
18. The question that falls for consideration before this Court, is:
"Whether the suit for delivery of possession is maintainable after having invoked Order XXI Rule 95 CPC?"
19. The father of defendant No.1-Devajana Mahalinga had obtained loan by mortgaging his half portion of the property, due to the non-payment of the loan amount, civil suit in OS No.152/1980 was filed for recovery of loan amount, the said suit came to be decreed, execution petition in Ex. Case No.63/1987 was initiated by the decree holder, in the execution proceedings, the plaintiff purchased the property through Court auction and 1 ILR 2014 Kar. 5628
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NC: 2024:KHC:36945 RSA No. 2209 of 2016 the sale was confirmed on 20.03.1993, the plaintiff filed CMC No.7/2000 against the defendants and one William D'Souza under Order XXI Rule 95 CPC to recover possession on 15.02.2000, the said CMC was dismissed on 25.05.2005 as barred by limitation, it is thereafter, the plaintiff filed the present suit seeking possession of the schedule premises. Suit of the plaintiff is for recovery of possession of the properties purchased in the public auction in Ex. Case No.63/1987, the auction purchaser can seek possession of the property by two means, one is, by filing an application in the execution petition under Order XXI Rule 95 CPC which mandates that an application for possession of the auction property can be made by the auction purchaser only after a sale certificate in accordance with Order XXI Rule 94 CPC is issued, Article 134 of the Act states that the auction purchaser can seek for delivery of possession in execution of a decree within one year when the sale becomes absolute. In the instant case, the application filed by the plaintiff under Order XXI Rule 95 has been dismissed on the ground of limitation,
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NC: 2024:KHC:36945 RSA No. 2209 of 2016 and other remedy available to the plaintiff is, by filing a suit seeking rights over the suit property by seeking recovery of possession. Order XXI Rule 95 CPC available to the auction purchaser is to get possession expeditiously in the very same execution proceedings. The defendants have set up a plea of adverse possession and the relevant Article applicable is Article 65 of the Act, which reads as under:
For possession of
When the possession
immovable property
Twelve of the defendant
65 or any interest
years becomes adverse to
therein based on
the plaintiff.
title.
20. When a party sets a plea of adverse possession, he has to establish as to from when his possession has become adverse to the knowledge of the other party and the limitation would start from such date. The sale was confirmed in favour of the plaintiff on 20.03.1993, the plaintiff filed application under Order XXI Rule 95 CPC, which came to be dismissed, the defendants have to prove
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NC: 2024:KHC:36945 RSA No. 2209 of 2016 that they have perfected their title adversely to the interest of the true owner, mere long and continuous possession by itself is not enough to plea an ouster not enough, when the defendant raises a plea of adverse possession, he must prove the same along with his "animus posidendi" and for ascertaining whether the plea of adverse possession was raised, the Court must construe the entire pleading and cumulative effect of the averments made in the written statement. The written statement of the defendants is totally silent about the ingredients of adverse possession as to when the possession of the defendants became adverse to the true owner, on the other hand, there are materials to indicate that the plaintiff had filed application under Order XXI Rule 95 seeking delivery of possession and which proceedings was concluded only in the year 2005 and the present suit seeking possession is filed in the year 2006, and thus, the defendants have failed to prove that they are in possession and enjoyment of the schedule properties
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NC: 2024:KHC:36945 RSA No. 2209 of 2016 openly, peacefully, continuously against the interest of the plaintiff over the statutory period.
21. By going back to the petition filed by the plaintiff in CMC.No.7/2000, it is relevant to state here that the Co-ordinate Bench of this Court in Sri Abdul Ubedulla stated supra has observed the legislation in order to avoid inconvenience and hardship to such auction purchasers has provided remedy by way of application under Order XXI Rule 95 CPC so that the auction purchaser would get possession expeditiously in the very same execution proceedings. But by inadvertence or by mistake if he does not choose to file application within one year from the date of confirmation of sale, his right in the property does not get extinguished. If the application is not filed within one year, then the auction purchaser is not entitled to possession of the property in the execution proceedings. But that cannot take away his right to recover possession by filing a suit. The sale in his favour being made absolute, he would become the absolute owner of the
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NC: 2024:KHC:36945 RSA No. 2209 of 2016 property and shall have all the rights over such property under law including the right to recover possession. The only difference is, if such application is filed within one year, he will get possession without paying any Court fee and without waiting for years. Once he loses that advantage given under law, then he has to file a suit for possession, pay requisite Court fee and such a suit is to be filed within twelve years from the date when the defendant's possession becomes adverse to his interest.
22. The said decision is squarely applicable to the present facts and circumstances of the case. The dismissal of CMC.No.7/2000, does not bar the present suit when the suit is filed within twelve years as envisaged under Article 65 of the Act. The Trial Court and the First Appellate Court have rightly arrived at a conclusion that the plaintiff is entitled for possession of the suit schedule properties. The manner in which the entire oral and documentary evidence is considered, this Court is of the considered view that the same does not warrant any
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NC: 2024:KHC:36945 RSA No. 2209 of 2016 interference under Section 100 CPC and no substantial question of law arises for consideration and accordingly, this Court pass the following:
ORDER
(i) Regular second appeal is hereby dismissed.
(ii) The judgment and decree passed by the Courts below stand confirmed.
Sd/-
(K.S. HEMALEKHA) JUDGE S* List No.: 2 Sl No.: 14