Karnataka High Court
Rachavva And Anr. vs Kariyappa Siddappa Itagi And Anr. on 28 October, 1980
Equivalent citations: AIR1981KANT76, 1981(1)KARLJ186, AIR 1981 KARNATAKA 76, (1981) 1 KANT LJ 186 (1981) 1 RENCR 472, (1981) 1 RENCR 472
JUDGMENT
1. This is a defendant's second appeal against the lower Appellate Court's judgment and decree decreeing the suit of the respondent-plaintiff for title to the suit schedule properties and also ordering mesne profits of Rs. 27-00 for the three years preceding the date of filing of the suit at the rate of 12 annas per month.
2. The plaintiff's case in the trial Court was that he was the owner of the suit schedule property consisting of two houses bearing V. P. C. Nos. 148 and 146 of Kanaginhal village as also the open site situated in the said village having purchased the same from one Ramasingappa Pulanekar (since deceased). Subsequently he leased the same to the 1st defendant on a monthly rent of 0-75 paise for a period of one year under a rent note. The rent note was renewed up to the end of 1946 and thereafter, the respondent having confidence in the appellant-defendant allowed her to continue as a tenant collecting rent at the same rate without any further rent notes. But, after the establishment of Village Panchayat in his village, he filed an application to have his name entered is the owner of the schedule properties which was resisted by the 1st defendant-appellant on the ground that she was the owner and that her name should be entered in the records of the Panchayat. Thereupon the petitioner did not receive any rents thereafter. In those circumstances, on 23-9-1963 he issued a legal notice by which the tenancy of the 1st appellant was terminated. He received a reply dated 27-9-1963 through which she denied the title of the plaintiff making false allegations. In these circumstances he prayed in the suit for declaration of his title to the suit schedule properties and also prayed for a decree for arrears of rents for three years immediately preceding the date of filing of the suit and also for possession of the schedule properties. The plaintiff had also alleged that defendant 1 had subleased the property to defendant 2 in the suit.
3. Defendant No. 1, in her written statement, contended that she had purchased the suit schedule properties in the name of the plaintiff and from the date of purchase she had continued to reside in the suit property in her own right and that she was not aware under what circumstances she had affixed her thumb impression to the rent notes. She had also stated that she had not sublet the premises to the 2nd defendant; that her health was not good and therefore, to look after her the 2nd defendant was residing there. She had also put up the plea that even as admitted by the plaintiff since the rent note ended for the period ending December, 1946 she was in adverse possession of the suit properties from that date and therefore had perfected her title to the suit properties and that the plaintiff was not entitled to the decree prayed for by him either in respect of title, possession or mesne profits.
4. On such pleadings, the trial Court framed as many as seven issues. The trial Court held that the 1st defendant had failed to prove that she was the benami owner of the suit properties. It also held that the plaintiff had not proved that the 1st 'defendant was the tenant of the plaintiff. But, the Court held that the plaintiff was the owner of the suit schedule properties. It also held that the plaintiff had failed to prove his possession for (within ?) 12 years prior to the date of filing of the suit. The trial Court also found that the plaintiff had failed to prove that, defendant 1 had continued as tenant in terms of Section 116 of the T. P. Act. It further held that the defendant had failed to prove that there was no relationship of landlord and tenant. Similarly, it also held that defendant 2 had not set up any title by adverse possession. The suit came to be dismissed on the ground that the suit was barred by time, the plaintiff having lost possession of the suit schedule property for more than 12 years and the suit having been not filed within that period.
5. It is sufficient to notice here that the trial Court fixed the year 1946-47 for the purpose of computing the period of limitation under Art. 139 of the Limitation Act, 1908 corresponding to Article 67 of the Limitation Act, 1963.
6. Aggrieved by the dismissal of the suit, the plaintiff filed an appeal before the learned Civil Judge, Gadag which came to be allowed to the extent that the judgment and decree of the trial Court was set aside and the suit was decreed in part holding that the plaintiff-respondent was the owner of the property; that the 1st defendant had not proved her title by adverse possession and therefore, the plaintiff was entitled to recover rents as he had established the relationship of landlord and tenant-between himself and the 1st defendant. The lower appellate Court did not grant decree for possession. To the extent of failure, the plain- tiff-respondent has preferred cross-objections in this Court praying for a decree for possession, as well. In other respects, the plaintiff supports the judgment and decree of the lower appellate Court.
7. The only question of law raised before, me by Sri S. R. Bannurmath was that the, lower appellate Court erred in coming to the conclusion that the 1st defendant had failed to prove perfection of her title by adverse possession which she had pleaded in her written statement inasmuch as the last rent note evidenced that the tenancy expired by the end of 1946 and therefore, the continued occupation and possession of the suit schedule properties by the defendant-appellant should be reckoned from 1st January, 1947 and therefore, the suit brought in 1963 would be clearly barred by time.
8. It is difficult to accept this contention for two reasons: Firstly, the defendant, admittedly, could claim continuous tenancy only under Section 116 of the Transfer of Property Act, in which case, the character of her occupation of the suit schedule properties do not stand altered adverse to the title of the original landlord. In a plea of adverse possession it is not sufficient to prove mere possession. Such possession should be adverse and hostile to the claims of the true owner. Therefore, the lower appellate Court was correct in fixing the period of limitation to commence for the period of adverse possession from the year 1953-54 when it was in evidence that for the first time the dispute arose as to whose claim should be registered in the records of the Village Panchayat and from which point of time the landlord had ceased to receive rents from the defendant. It is unfortunate that in the trial Court though several documents have been admitted in evidence on the crucial question of as to from what point of time the dispute regarding the title arose, both the Courts fully relied entirely upon the oral evidence of the parties and other examined. The lower appellate Court rely upon the oral evidence of the plaintiff respondent in the matter of dispute arising regarding the entry of other's name in the records of the Village Panchayat and also his assertion that he stopped receiving rent from that date. In other words, the lower appellate Court had inferred there from that the respondent-plaintiff was receiving rents up to that point of time, which clearly established, in his view, that up to 1954 the appellant-defendant was his tenant. This being a finding of fact, I have to accept that finding and not reappreciate the evidence on record. If that is the position, then the plea of adverse possession set up by the defendant-appellant must necessarily fail.
9. The second reason why the appellant defendant should not succeed is that after setting up title in herself and having failed to prove the same, she was not entitled to adverse possession at all as long as she also took the stand that she was a tenant by sufferance under Section 116 of the Transfer of Property Act. Almost on identical set of facts, in the case of Mithoor Shankar Bhatta v. Beira Maila, (1968) 1 Mys LJ 374, referring to the contentions advanced for the respondents therein, Tukol, J., as he then was, had this to say:
"On principle, I am unable to accept this contention, because, in order to assess the nature of possession of holding over after the expiry of the period of the rent note, it is immaterial as to when exactly the notice demanding rent is issued; what is material for the purpose of the decision is the conduct of the parties immediately after the expiry of the term of the rent note and the conduct of the person in possession thereafter up to The date of receipt of notice or up to the date of suit."
10. It is in evidence as noticed in the judgments of the Courts below that the defendant had failed to perfect her title in accordance with the pleadings at an earlier point of time before receipt of notice of termination in 1963. It is also not in dispute as evidenced by the oral testimony pf witnesses that the real dispute as to the ownership of the property arose in proceedings before the Panchayat. In this view of the matter, the contention urged by the defendant must necessarily fall.
11. Tarakaram, learned Counsel appearing for the respondent-plaintiff, strongly urged that the lower appellate Court erred in coming to the conclusion that on account of the fact that there was defect in the notice terminating the tenancy, the plaintiff would not be entitled to possession of the soft schedule property. His contention is that when the tenant disputes the title of the landlord, 1irrespective of the technicalities of Section 106 of the Transfer of Property Act, The landlord should be entitled to the possession of the premises. There was forfeiture of the lease of whatever kind in terms of Section 111 of the Transfer of Property Act and therefore, the lower appellate Court ought to have decreed the suit for possession as well. There is some force in this argument, as a person cannot be given the benefit of right to continue as tenant and also contest the title of the landlord at the same time. In the said view of the matter, the order of lower appellate Court while it stands in all other respects is modified to the extent, of the portion relating to denial of possession to the plaintiff.
12. Therefore, there shall be a decree for recovery of possession in so far as the cross objector is concerned. Having regard to the prolonged litigation and the age of the 1st defendant and also having regard to the fact that the original plaintiff is dead and is now represented by legal representative who is not a direct descendant but the brother of the deceased-plaintiff, the period of nine months for the appellant to vacate the premises would be reasonable and just. The parties will bear their own costs.
Cross objection is allowed. The Second Appeal is dismissed.
13. Order accordingly.