Karnataka High Court
Chinnappa @ Kumarappa vs Akkayamma W/O Late Annayappa on 1 June, 2017
RFA NO.1372/2010(DEC/POS)
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1st DAY OF JUNE, 2017
BEFORE
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
REGULAR FIRST APPEAL NO.1372/2010 (DEC/POS)
BETWEEN:
Chinnappa @ Kumarappa,
Aged about 73 years,
S/o Late Kondaiah,
#9/5, Old No.127, 1st main,
Byrasandra, 1st Block East,
Jayanagar, Bengaluru-11.
Since dead by his LRS.
1. Lakshmamma,
Aged about 57 years,
W/o Late Chinnappa @ Kumarappa Bovi.
2. K.C.Jayakumar,
Aged about 34 years,
S/o Late Chinnappa @ Kumarappa Bovi.
3. Saraswathi,
Aged about 30 years,
D/o Late Chinnappa @ Kumarappa Bovi,
4. Prasanna,
Aged about 28 years,
S/o Late Chinnappa @ Kumarappa Bovi.
(1,2,3 & 4 are LR's of Appellants all are
R/at #9/8, 1st Main Road, 1st Block East,
Jayanagara, Bangalore-560 011. ...Appellants
RFA NO.1372/2010(DEC/POS)
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(Amended as per vide order Dt:15.06.2011)
(By Sri.H.N.Venkatesh, Adv., for A1 (1 to 4))
AND:
Akkayamma,
Aged about 78 years,
W/o Late Annayappa,
#9/5, Old No.127, 1st Main,
Byrasandra, 1st Block East,
Jayanagar, Bengaluru-11.
Since deceased by his LRS
1. Sri.Kodandarama,
Aged about 50 years,
S/o Annappa, #9/5,
1st Main Road, Byrasandra,
Jayanagar, 1st Block East,
Bengaluru-11. ....Respondent
(Amended as per Court Order Dt:14.07.2015, today Adv.,
for Appellant 27.07.2016.
(By Smt.N.Deepashree & Sri.Amarnath Simha, Adv., for
(C/R) (CP.No.1042/10).
Smt.Deepashree & Sri.Amarnath Simha Adv., for proposed
LRS of R1 (F-H).
Sri.C.Manivannan, Adv., for LRS of deceased R1, vide order
dt:14.07.2015, A1 is treated as the LRS of deceased R1).
This RFA is filed under section 96 R/W Order XLVI of
CPC, against the Judgment and Decree dt:31.07.2010
passed in O.S.No.16646/2002 on the file of the XXVIII
Addl. City Civil & Sessions Judge, Mayohall, Bangalore,
(CCH.No.29), decreeing the suit for Declaration, Possession
and Permanent Injunction.
RFA NO.1372/2010(DEC/POS)
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This appeal coming on for Further Hearing this day, the
Court delivered the following:
JUDGMENT
This defendant's appeal arises out of the judgment and decree dated 31.07.2010 in O.S.No.16646/2002 passed by the 28th Addl. City Civil Judge, Mayo Hall Unit, Bangalore. By the impugned judgment, the trial Court has decreed the suit of the plaintiff for declaration of the title to the suit schedule properties and for possession of plaint schedule "B" property from the defendant.
2. The respondent is the plaintiff before the trial Court. For the purpose of convenience, the parties will be referred herein with their ranks before the trial Court.
3. The subject matter of the suit is described as schedule "A" to "C" to the plaint as follows:
SCHEDULE "A"
"All that piece and parcel of land alongwith building standing thereon bearing Municipal No.9/5 (Old No.127), I Main, Byrasandra, I Block East, Jayanagar, Bangalore-560 011, measuring North-South:44 ft. and East-West:38 ft., and bounded on the: East by: Road, West by: Munishami's RFA NO.1372/2010(DEC/POS) 4 House, North by: Gullashetty's House and South by: Munishami's House, and shown in colour GREEN and marked by letters A B C D A in the rough sketch."
SCHEDULE "B"
"All the piece and parcel of land being a portion of "A"
Schedule Property comprising of old dilapidated building standing thereon, under the occupation of the Defendant, bearing Municipal No.9/5 (Old No.127), I Main, Byrasandra, I Block East, Jayanagar, Bangalore-560 011, measuring North-south:19 ft. and East-West:13ft., and bounded on the:
East by: Portion of "A" Schedule Property now vacant, West by:Portion of "A" Schedule Property now vacant and beyond the premises under occupation of the Plaintiff, North by:
Portion under the occupation of the Plaintiff and South by: Conservancy Lane and beyond there is Munishami's House, and shown in colour RED and marked by letters E F G H E in the rough sketch."
SCHEDULE "C"
"Remaining vacant land adjoining and around Schedule "B" and excluding Schedule "B" Property, and being a portion of the Schedule "A" Property, now under the exclusive possession and enjoyment of the Plaintiff bearing Municipal No.9/5 (Old No.127), I Main, Byrasandra, I Block East, Jayanagar, Bangalore-560 011, bounded on the: East by: Road, West by: Munishami's House, North by"Gullashetty's House and South by: Munishami's House bearing No.9/9."
4. The case of the plaintiff in brief is as follows:
That the defendant's father Kondaiah was the owner of plaint schedule "A" property. He sold the same to P.Munivenkatappa by the registered sale deed dated RFA NO.1372/2010(DEC/POS) 5 29.06.1954. Munivenkatappa in turn sold the property to Krishnappa vide registered sale deed dated 05.11.1958.
Krishnappa inturn sold the property to P.Narasimhaiah vide registered sale deed dated 03.01.1961. Plaintiff purchased the said property from P.Narasimhaiah vide registered sale deed dated 08.06.1962. On the request of the defendant, plaintiff permitted him to reside in plaint "B" schedule property on a monthly rent of Rs.10/- which was increased from time to time. Since the defendant committed default in payment of rent, she filed HRC No.10037/1996 for eviction of the defendant from the "B" schedule property. The defendant did not contest the petition and the same was allowed. Later the said order of eviction was set-aside on the defendant filing a Misc.Petition 10001/98 for setting aside the exparte decree. The defendant denied the relationship of the landlord and tenant and claimed title to the property. Therefore, she seeks declaration of title to "B" schedule property and possession.
RFA NO.1372/2010(DEC/POS) 6
5. The defendant filed the written statement and contested the suit. His defence in brief is as follows:
It is denied that the plaintiff is the owner of the suit schedule properties. In 1954 his father was in need of money. Munivenkatappa was related to the defendant's father. Therefore, he borrowed Rs.600/- from Munivenkatappa and as security for repayment of the same, he executed the sale deed in 1954. The said sale deed was nominal and not intended to be acted upon. Since the defendant could not repay the loan, the property was conveyed to Krishnappa to see that later same is reconveyed to the defendant's father. Later, without the knowledge or consent of the plaintiff and his father, Krishnappa has sold the property to Narasimhaiah. Therefore, the sale deeds in favour of Narasimhaiah and the plaintiff do not bind him. The possession of the property was with the defendant and his father himself. The theory of tenancy is denied. The plaintiff fraudulently obtained an eviction order in HRC No.10037/1996 which RFA NO.1372/2010(DEC/POS) 7 came to be set-aside later and he is put in possession. The description of the suit property is incorrect. He is the absolute owner and in possession of the property since 1947 and thereby he has perfected his title to the property by adverse possession. The suit is barred by him.
6. On the basis of the above pleadings, the trial Court framed the following issues:
"1. Whether the Plaintiff proves that she is the absolute owner of Suit Schedule A, B and C Property?
2. Whether the Plaintiff proves that the Defendant is in unlawful possession of B-Schedule Property?
3. Whether the Defendant proves that A-Schedule Property is not in existence?
4. Whether the Defendant proves that he has perfected his title by way of adverse possession?
5. Whether the suit is barred by limitation?
6. Whether the Plaintiff is entitled for delivery of vacant possession of Schedule-B Property?
7. Whether the Plaintiff is entitled for the relief of permanent injunction as sought for?
8. What order or decree?"
RFA NO.1372/2010(DEC/POS) 8
7. The parties led evidence before the trial Court. The power of attorney holder of the plaintiff is examined as PW1 and got marked Exs.P.1 to P.22. The defendant got examined himself as DW1 and did not produce any documentary evidence. The trial Court after hearing both the parties, by the impugned judgment decreed the suit on the following grounds:
(1) the defendant admits the execution of the sale deed -
Ex.P.20 in favour of Munivenkatappa, but he has failed to prove his defence that the sale deed was nominal one and not intended to be acted upon.
(2) The katha extracts, tax paid receipts produced by the plaintiff show that she was put in possession of the property under the sale deed - Ex.P.20.
(3) The defendant has failed to prove his case of adverse possession.
(4) The pleadings and evidence required for the proof of case of adverse possession fall inadequate RFA NO.1372/2010(DEC/POS) 9 (5) The suit is in time since the same is filed within 12 years from the date of the defendant denying the plaintiffs title.
8. Pending this appeal, both the plaintiff and defendant died. The defendant's legal representatives have come on record. Plaintiff died without leaving behind any class-1 heirs. PWs1 and others claimed that they have succeeded to the estate of the plaintiff by virtue of the will executed by her. Since her will was denied, the locus of the applicants to come on record as legal representatives of the plaintiff was questioned. I.A.nos.2 and 3/2014 was filed before this Court. This Court vide order dated 16.01.2015 referred the matter to the trial Court for recording evidence to conduct enquiry regarding the claim of the applicants to the estate of the deceased respondent and for a report in that regard.
9. The trial Court conducted the enquiry and returned the report on 23.06.2015. This Court vide order RFA NO.1372/2010(DEC/POS) 10 dated 14.07.2015 held Kodandarama as the legal representative of Akkayamma - plaintiff.
10. Learned counsel for the appellant referring to last paragraph of order dated 27.07.2016 contends that the order dated 14.07.2015 is reviewed on 27.07.2016 and the question as to who is legal representative of deceased respondent is kept open. The last paragraph of the order dated 27.07.2016 reads as follows:
"The appeal has been admitted. Having
regard to the execution case
No.25058/2016 now filed by the legal
representative of the deceased respondent and since the issue in the appeal is not yet decided, as the rights of the legal representative of the deceased respondent have also not been decided, the impugned judgment and decree of the trial court is stated until further orders."
11. Reading of the said paragraph indicates that appellant/defendant insisted for the interim stay. In that context the Court held that since Execution petition is filed RFA NO.1372/2010(DEC/POS) 11 and appeal is admitted and the issue in the appeal and the rights of the legal representative in the appeal are yet to be decided interim stay needs to be granted. By no strech of imagination, it can be said that that is an order reviewing or recalling the earlier order dated 14.07.2015. Therefore, the contention that the question, 'who is legal representative of the deceased respondent is kept open' is hereby rejected.
12. Learned counsel appearing for the defendant in his argument assails in the impugned judgment on the following grounds:
(i) Despite defendant filing O.S.3302/1989 against the plaintiff, she filed this suit in the year 2010. That the suit is filed after 50 years after the sale deed, therefore, hopelessly barred by time and the trial Court failed to note the said fact;
(ii) The plaintiff was totally indisposable and the suit itself is stage managed by PW1 and the plaintiff is only a name lender;
RFA NO.1372/2010(DEC/POS) 12
(iii) PW1 has no locus standi to prosecute the matter. He contends the trial Court has failed to take into consideration the said fact;
(iv) The description of the suit property does not match with the documents produced and on that count, the suit should have been dismissed;
(v) The evidence on record sufficiently demonstrates that the defendant was in possession of the property hostile to the title of the plaintiff since 1947 and the trial Court failed to appreciation of the evidence in that regard and arrive at proper finding on that issue;
13. In support of his arguments, learned counsel relied on the following judgments:
(1) T.Anjanappa and Others vs Somalingappa and Another ((2006) 7 SCC 570) (2) Saroop Singh vs Banto and Others ((2005) 8 SCC
330) (3) Venkataramana Alias Venkappa vs Ganpathi and Others (AIR 2004 Kant 443) (4) Raju and another vs Muthu-ammal and others, (AIR 2004 Madras 134) RFA NO.1372/2010(DEC/POS) 13
14. As against this, Learned counsel for the respondent/plaintiff in his arguments seeks to support the impugned judgment on the following grounds:
(1) Since the defendant admitted the sale deed in favour of Munivenkatappa, the burden was on him to prove that the said document was only a nominal one and not acted upon but, he failed to prove the said contention;
(ii) The identity of the suit property is not disputed in the written statement and that cannot be raised at this point of time;
(iii) So far as the limitation the defendant set-up the claim of ownership for the first time in HRC No.10037/1996 and the suit is filed 12 years thereafter. Therefore, the suit is in time;
(iv) So far as the locus standi of the power of attorney holder, it was for Plaintiff/Akkayamma and her heirs to question that, in the absence of those interested persons challenging the locus standi of PW1, it is not open for the RFA NO.1372/2010(DEC/POS) 14 defendant to challenge the same. More over he is the close relative of Akkayamma;
(v) So far as adverse possession, the defendant has to plead and prove from which date his possession became adverse. The said basic fact is not pleaded and proved.
Therefore, the trial Court was justified in holding that issue against the defendant.
15. Having regard to the above said rival contentions of the parties, the questions that arise for consideration of this Court are:
(1) Whether the findings of the trial Court that the plaintiff is the absolute owner of the suit properties is sustainable in law?
(2) Whether the trial Court committed any error in decreeing the suit?
16. REG. LOCUS STANDI OF SHRI. R.K.MURTHY:
The Power of Attorney holder instituted the suit. It is contended that son of Akkayamma was totally indisposable since about 10 years prior to the evidence of PW.1 and she RFA NO.1372/2010(DEC/POS) 15 has not filed suit and the Power of Attorney holder is a defacto plaintiff. It is contended that he has no locus standi to file the suit. The Power of Attorney was executed in favour of Shri.R.K.Murthy to file the suit and to prosecute the same. There is no dispute that Shri.R.K.Murthy is also relative of Akkayamma. During her lifetime Akkayamma or on her death, her heir Shri.Kodandarama questioned the execution of the said Power of Attorney in favour of Shri.R.K.Murthy. Therefore, it is not open for the third party i.e., defendant to question the locus standi of Shri.R.K.Murthy. Therefore, there is no merit in the contention that the suit is filed by the incompetent person.
17. REG.LIMITATION:
The defendant in paragraph No.6 of the written statement has contended that the suit is barred by time. He contended that he is in possession of the property, even according to the plaintiff since 1962 and hence the suit filed after 40 years for declaration and possession is barred RFA NO.1372/2010(DEC/POS) 16 by time. Article 65 of the Limitation Act, 1963 prescribes 12 years time to file suit for possession of immovable property based on the title and time of 12 years has to be reckoned from the date of possession of the defendant becoming adverse to the title of the plaintiff.
18. This Court in the case of Shri. C.V.Jayaram Vs. Shri. A.M.Reddy ILR 2014 KAR 1488 has laid down guidelines in deciding the adverse possession. It says that party who claims right by adverse possession has to specifically plead the date on which his possession became adverse to that of his adversory. That such possession should be for a continuous period of 12 years and it should be open, peaceful, uninterrupted and hostile to the knowledge of the true owner. It is also held that the party claiming adverse possession, has to admit the title of the party against whom the adverse possession is claimed.
(i) It is no doubt true that the defendant has filed suit O.S.No.3302/1989 for permanent injunction against the RFA NO.1372/2010(DEC/POS) 17 present plaintiff. Ex.P26 is the copy of the said plaint. The perusal of the said document shows that the present defendant claimed that he is in possession of the property since 1962.
19. The learned counsel appearing for the defendant contends that the suit is not filed within 12 years from the date of filing of written statement in O.S.No.3302/1989. The present suit is filed on 01.10.2002. Of course, the present suit is not filed within 12 years from the date of institution of O.S.No.3302/1989. But, the trial Court overruled the contention of the limitation holding that to claim the adverse possession, the defendant has to admit the ownership of the plaintiff and in this case, the defendant did not admit the ownership of the plaintiff. Therefore, the question of adverse possession does not arise.
20. As rightly held that the trial court even in O.S.No.3302/1989, the present defendant contended that the sale deeds standing in the name of the plaintiff are RFA NO.1372/2010(DEC/POS) 18 ostensible sale deeds and the same were not acted upon and hence, he did not admit the ownership of the plaintiff. Therefore, he cannot invoke the principle of perfection of title by adverse possession. Even otherwise, the subject matter of this suit is admittedly the subject matter of HRC No.10037/1996. The defendant in paragraph No.14 of the written statement contends that the subject matter of the of O.S.No.3302/1989 and HRC No.10037/1996 are totally different that means, that is different from the present schedule premises also. Therefore, on such plea of the defendant himself the plea that the suit is not barred by limitation fails.
21. REG. IDENTITY OF PROPERTY:
The subject matter of the suit is described in the plaint schedule as 'A', 'B' and 'C' properties. The defendant disputed the identity of the property. To explain the topography of the property, the plaintiff has produced Ex.P5- the sketch along with the plaint. There is no dispute that the property shown in Ex.P5 by letters 'A', 'B', RFA NO.1372/2010(DEC/POS) 19 'K', 'C', 'D' and 'J' initially belonged to the father of the defendant. The plaintiff claims that the defendant and his father sold the property to one Shri. Munivenkatappa under Ex.P20. There is no dispute that the same property in turn conveyed to Shri.Krishnappa under Ex.P21 on 04.11.1958. Shri.Krishnappa in turn sold the very same property to one Shri.Narasimhaiah under Ex.P22 on 03.01.1996. Shri.Narasimhaiah conveyed the very same property to the plaintiff under Ex.P2 and P3 on 08.06.1962 and under Ex.P4 on 13.09.1962 i.e. in three different bits.
There cannot be any dispute that the properties conveyed under Ex.P2 to 4 are one and the same. Whether the said documents are ostensible sale deeds or the nominal deeds is the different issue to be considered. Having regard to his own defence in written statement that the properties under Ex.P20 were conveyed as security for repayment of loan and in turn to the plaintiff the contention that the property is not identifiable, cannot be accepted.
RFA NO.1372/2010(DEC/POS) 20
22. According to the plaintiff, the defendant is in possession of the part of the property which is shown as 'B' schedule property and he is obstructing her possession and enjoyment of the 'C' schedule property which abuts the 'B' schedule property.
23. The records show that the plaintiff's application for injunction in the very same suit was dismissed by the trial Court on the ground that the identity of the property is not established and she took up the matter before this Court in M.F.A.No.1899/2003. This Court in M.F.A.No.1899/2003 rejecting the contention regarding the identity of the property and reversed the order of the trial Court and granted injunction in respect of suit property except the 'B' schedule which is in occupation of the defendant. That order has attained finality.
24. In addition to that the defendant in his written statement does not state in what way the property is not identifiable. He does not say whether the boundaries of RFA NO.1372/2010(DEC/POS) 21 the schedule properties are incorrect. As against that in the written statement at paragraph No.15 it is stated that 'A' schedule property is not in existence at all, is contrary to Ex.P20 and 21, which are admitted by him only. Therefore, the trial Court has not raised any issue regarding the identity of the property. Thus, at this stage, it is not open to the defendant to challenge the correctness of the judgment on the ground of identity of the property.
25. REG. ADVERSE POSSESSION:
The last question that remains for consideration is whether the defendant has perfected his title by adverse possession and therefore, the trial Court has committed error in decreeing the suit for possession. As held by this Court, in the case of Shri. C.V.Jayaram Vs. Shri. A.M.Reddy referred supra, the party who sets up title by adverse possession has to specifically plead the date of his possession becoming adverse to that of defendant. It should be open, peaceful, uninterrupted and for a continuous period of 12 years and hostile to the knowledge RFA NO.1372/2010(DEC/POS) 22 of the true owner and the defendant has to admit the ownership of the person against whom he seeks title by adverse possession.
26. Defendant contended that Ex.P20 and 21 were nominal documents and they are not acted upon. According to him, those documents were executed only as a security for repayment of the loan borrowed by his father. The tenor of Exs.P20 and 21 do not indicate that there was a loan transaction between the executants of Ex.P20 and 21 and the documents were executed only as security for repayment of loan. After 35 years for the first time, in the O.S.No.3302/1989, the present defendant came up with the contention that the sale deeds were ostensible sale deeds.
27. Ex.P20 states that the consideration is passed to the vendor and even the possession is handed over to the purchaser. The present defendant is also signatory to the said documents. The defendant is signatory even to Ex.P2 RFA NO.1372/2010(DEC/POS) 23 to 4 sale deeds executed by one Shri.Narasimhaiah in favour of the plaintiff. If it was only loan transaction, there was no impediment for the defendant and his father to get documents drafted incorporating such loan transactions.
28. Section 91 of Evidence Act, 1963 bars a party from adducing any oral evidence contrary to the terms of the documents in writing. Therefore, the evidence of DW.1 that of Ex.P20 and further documents thereof were not true sale deeds and they were only nominal documents cannot be accepted and adducing such evidence is not permissible also. Even otherwise except his self-serving testimony, the defendant did not produce any material to show that the possession is not handed over to the purchaser/plaintiff under the sale deeds referred to supra. As against that, the plaintiff produced copies of the khata and tax paid receipts to show that her name was entered to the suit schedule property and she has paid tax.
RFA NO.1372/2010(DEC/POS) 24 Therefore, the trial Court has rightly rejected the plea of adverse possession.
29. REG.APPLICATION FILED UNDER ORDER 41 RULE 27 R/W SECTION 151 OF C.P.C.:
Appellant filed I.A.No.1/2017 for leave to produce copies of application and memo filed in O.S.No.5419/2009 by Kodandarama - the legal representative of deceased respondent/plaintiff, copy of registered sale deed dated 11.04.1947 in favour of Kodaiah-father of the defendant, copies of endorsement issued by the Asst. Revenue Officer, BBMP, dated 03.04.1998 and 26.11.2001, copy of written statement filed by Akkayamma in O.S.No.3302/1989 and copy of GPA executed by Akkayamma in favour of R.K.Murthy in O.S.No.605/2010.
30. In the affidavit filed in support of the application it is stated that by inadvertence and on account of defendant involving in an accident, during the proceedings before the trial court, he could not produce the said RFA NO.1372/2010(DEC/POS) 25 documents. Adducing additional evidence can be permitted only if the conditions required under Order 41 Rule 27 of CPC are satisfied. Such production can be allowed if trial Court unnecessarily rejected them, the applicant establishes that notwithstanding the exercise of due diligence he could not produce them before the trial Court, if such documents are required by the Court for the purpose of complete adjudication of the matter.
31. In this case, the appellant seeks to invoke the clause regarding the inability to produce documents for the reasons beyond his control. But, the records show that all along the defendant participated in the proceedings before the trial Court. There is no material in respect of the alleged accident and his disability on account of any accident. Further, the material on record is sufficient to dispose of this appeal even without the documents sought to be produced. They do not throw any special light in the matter. Therefore, I.A.No.1/2017 carries no merits.
RFA NO.1372/2010(DEC/POS) 26
32. In T. Anjanappa and others Vs. Somalingappa and others (2006) 7 SCC 570 relied upon by the learned counsel for the defendant, it is held that to claim adverse possession, the possession must be hostile, in denial either express or implied of the real owner and possessor must clearly know the actual owner of the property. It is further held that the possession must be peaceful, continuous and open, capable of being known by parties interested. Even the said judgment indicates that the person who claims the adverse possession must admit the ownership of the person against whom such adverse possession is claimed.
33. In Saroop Singh's case stated supra it was held that the defendant having not raised any plea of adverse possession in the earlier suit, the subsequent suit cannot be held as time barred. For the reasons discussed above O.S.No.3302/1989 filed by the defendant does not make the present suit time barred. Therefore, that judgment also not helpful to the defendant.
RFA NO.1372/2010(DEC/POS) 27
34. In Deepak S. Gulalkari and others Vs. Pundlirao C. Bangar and others AIR 2004 Bombay 318 relied upon by the learned counsel for the defendant, it is held that mere assertion of hostile intention is not sufficient to prove the adverse possession and such possession with hostile intention should have been proved. It is also held that the permissive occupation, does not make the possession hostile. Therefore, the said judgment is also not helpful to the defendant.
35. The trial Court was fully justified in holding that the adverse possession has not proved. The other contentions of the defendant/appellant is that when the plaintiff herself sought for declaration of title in respect of 'B' schedule property and possession in respect of 'C' schedule property, the trial Court has granted declaration in respect of 'A' to 'C' schedule properties and therefore, the judgment and decree is unsustainable. Since declaration of title was sought only in respect of plaint schedule "B"
RFA NO.1372/2010(DEC/POS) 28 property the impugned judgment and decree granting declaration in respect of 'A' and 'C' schedule properties requires to be modified, the appeal succeeds only to that extent.
36. For the aforesaid reasons, I.A.1/2017 is dismissed and the appeal is allowed in part. The judgment and decree of the trial Court is partly set aside. The suit of the plaintiff is decreed in part. The plaintiff is hereby declared as absolute owner in respect of 'B' schedule property. The defendant is directed to handover the vacant possession of 'B' schedule property to the plaintiff within 60 days from the date of this judgment. Further, the defendant is hereby permanently restrained from interfering with the suit 'C' schedule property in any manner.
Sd/-
JUDGE brn/dl