Karnataka High Court
Ramchandra S/O Sharanappa Gundagi Ors vs Shivaraya S/O Sharanappa Havani on 25 September, 2023
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NC: 2023:KHC-K:7672
RSA No. 7147 of 2011
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 25TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
REGULAR SECOND APPEAL NO. 7147 OF 2011 (DEC)
BETWEEN:
RAMACHANDRA, S/O. SHARANAPPA GUNDAGI
SINCE DECEASED BY LRS.
1. SMT. SHANTABAI,
W/O LATE RAMACHANDRA GUNDAGI,
AGED ABOUT 62 YEARS,
OCC: HOUSEHOLD.
2. SHARANAPPA,
S/O LATE RAMACHANDRA GUNDAGI,
AGED ABOUT 38 YEARS,
OCC:PRIVATE SERVICE.
Digitally signed 3. SMT. PADMAVATI,
by SOMANATH W/O. VAIJANATH,
PENTAPPA AGED ABOUT 43 YEARS,
MITTE
Location: HIGH
OCC: HOUSEHOLD.
COURT OF
KARNATAKA 4. KALAVATI,
W/O LATE MALIKARJUN GUNDAGI,
AGED ABOUT 35 YEARS,
OCC: HOUSEHOLD.
ALL R/O H.NO. 10-18, LOWER LANE,
NEAR DATTA MANDIR, BRAHMPUR,
GULBARGA.
..APPELLANTS
(BY SRI SHIVAKUMAR KALLOOR, ADVOCATE)
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RSA No. 7147 of 2011
AND:
SHIVARAYA, S/O SHARANAPPA HAVANI,
SINCE DECEASED BY LRS.
1. SHARANAPPA, S/O. SHIVARAYA HAVANI,
AGED ABOUT 42 YEARS,
OCC: PRIVATE SERVICE,
R/O H.NO.10-13/1, LOWER LANE,
NEAR DATTA MANDIR, BRAHMPUR,
GULBARGA.
2. KAMALABAI, W/O. SRIMANTRAO,
AGED ABOUT 37 YEARS,
OCC: HOUSEHOLD,
R/O BRAHMPUR,
GULBARGA.
..RESPONDENTS
(BY SRI MANVENDRA REDDY, ADVOCATE FOR R1;
SRI B.HANMANTH REDDY, ADVOCATE FOR R2)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC, AGAINST THE JUDGEMENT AND DECREE
DATED 02.02.2011 PASSED IN R.A. NO. 111/2009 ON THE FILE
OF THE II ADDL. CIVIL JUDGE (SR.DN.) AT GULBARGA,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT
AND DECREE DATED 01.08.2009 PASSED IN O.S. NO.
395/1990 ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN.) AT
GULBARGA.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY THROUGH VIDEO CONFERENCING AT BENGALURU,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Being aggrieved by the concurrent judgments and decrees in OS No.395/1990 dated 1-8-2009 passed by the -3- NC: 2023:KHC-K:7672 RSA No. 7147 of 2011 learned Principal Civil Judge (Jr.Dn), Gulbarga and in RA No.111/2009 dated 2-2-2011 passed by the learned II Additional Civil Judge (Sr.Dn), Gulbarga, the plaintiffs have approached this Court in Second Appeal.
2. Parties would be referred to as per their status before the trial Court for the sake of convenience.
3. The brief facts are as below:
The plaintiff-Ramachandra (now represented by his LRs-appellants herein) contended that the suit open site shown by ABCDEF in the plaint sketch which is on the southern side of the house owned by him bearing No.10- 18 is of his ownership. It was contended that one Balakrishna who was the owner of survey No.13 which is situated on the southern side of the suit property had disputed the ownership and possession of the plaintiff and therefore, the plaintiff had filed OS No.120/1986 for perpetual injunction and the said suit came to be decreed in favour of the plaintiff on 6-6-1986. Against the said -4- NC: 2023:KHC-K:7672 RSA No. 7147 of 2011 judgment, the said Balakrishna had filed an appeal which came to be dismissed and as such, the decree has become final. It was contended that the defendant - Shivaraya (now represented by his LRs, respondents herein) is not having any house adjoining to the plaintiff's house and therefore, he has no concern in respect of the property owned by the plaintiff. It was contended that the defendant was an agricultural servant of the said Balakrishna and the said Balakrishna having lost all the remedies, instigated the defendant to occupy the suit open space. As such, the defendant had occupied a portion of the suit open space measuring 40 x 6 feet. The said allegation in respect of the forcible occupation of the partition of the defendant was incorporated by way of amendment in the year 2000. Contending that the plaintiff is the owner in possession of the suit property, he has sought for declaration to that effect and claimed possession in respect of the encroached portion along with the mesne profits/damages from the defendant.-5-
NC: 2023:KHC-K:7672 RSA No. 7147 of 2011
4. On appearance, defendant filed the written statement contending that the suit property is part of paradi No.13 which measures 1 acre 15 guntas and it bears the City Survey No.3688 and is owned by the said Balakrishna who was his Master. He contends that the said Balakrishna had remained absent in OS No.120/1986 and as such, it was an exparte decree which was assailed by the said Balakrishna in Misc.P.No.85/1986. He contended that on the ground of delay the said Misc.P. came to be dismissed, against which, Balakrishna preferred MA No.134/1988 which also came to be dismissed as time barred. It was contended that on the basis of the one sided judgment in OS No.120/1986, the plaintiff got his name mutated in the records in respect of the suit property. Thereafter, Balakrishna has filed a suit for declaration of ownership and possession in OS No.91/1991. Therefore, he contended that the said Balakrishna is the owner of the property and he is a necessary party to the suit. Defendant contended that he is the servant of Balakrishna residing in the suit property -6- NC: 2023:KHC-K:7672 RSA No. 7147 of 2011 since 1968 and he is in peaceful possession and enjoyment of the property for more than two decades and he is storing agricultural implements in the suit property and tethering cattle in the same. Therefore, the defendant resisted the suit and sought for dismissal of the same.
5. Records reveal that a judgment passed by the trial Court was questioned in RA No.70/2004 and the matter was again remanded to the trial Court for fresh disposal after affording opportunities to adduce evidence.
6. On the basis of the above pleadings, the following issues are framed and answered by the trial Court as below:
Issues Answer 1. Whether the plaintiff proves that he is In the
an owner of two open spaces towards negative cast 25'x15' and towards South 40'x10' and they are part and parcel of house No.10-18 of Brahmpur, Gulbarga?
2. Whether the plaintiff proves that In the -7- NC: 2023:KHC-K:7672 RSA No. 7147 of 2011 defendant has no house or other negative property adjoining to the plaintiff's house?
3. Whether the plaintiff proves that In the defendant has forcibly occupied a negative portion in the Southern plot measuring to the extent of 40' east to west and to 6' north to south before the institution of suit and he started to tether his she-buffalos, in the suit site?
4. Whether plaintiff proves that he is In the entitled for damages of Rs.800/- as a negative rent of Rs.500/- per month?
5. Whether the plaintiff proves that the In the occupation of the defendant is illegal negative and unlawful?
6. What order or decree? As per final order Additional Issues
1. Whether the plaintiff proves that In the during the pendency of this suit negative during 1995 June, the defendant has encroached on the eastern side plot measuring 25'x15' by dispossessing him?
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2. Whether the suit of the plaintiff is In the bared by time limitation? negative
7. In coming to such conclusion, the trial Court has considered the testimony of PWs.1 to 3 (PW.3 being the wife of PW.1-plaintiff) and documents at Exs.P1 to P26 on behalf of the plaintiff and testimony of DWs1 to 3 and documents at Ex.D1 to D3 on behalf of the defendant.
8. During the pendency of the suit, both the plaintiff and the defendant died and their legal heirs were brought on record. Therefore, the parties would be referred to as plaintiffs and defendants henceforth.
9. By answering the issues as above, the trial Court dismissed the suit. Being aggrieved by the dismissal, the plaintiffs preferred RA No.111/2009 before the learned II Additional Civil Judge (Sr.Dn.), Gulbarga.
10. The First Appellate Court heard the arguments by learned counsel for the plaintiffs and the defendants and -9- NC: 2023:KHC-K:7672 RSA No. 7147 of 2011 answered the points framed by it in the negative and dismissed the appeal.
11. Being aggrieved by the said concurrent findings by the First Appellate Court, the plaintiffs are before this Court in second appeal.
12. After hearing the learned counsel for the appellants on admission, this Court framed substantial questions of law. On a perusal of the substantial questions of law, it is evident that there are some typo errors which have crept in. The second substantial question of law pertains to the question of possession which was already considered in another proceeding. However, erroneously, this Court noted that it is OS No.395/1990, which is the present suit itself. Therefore, the same is corrected as OS No.37/2001. Hence, the substantial questions of law read as below:
1. Whether the trial court was right in not relying Ex.P-5 in regard to possession of plaintiff in respect
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NC: 2023:KHC-K:7672 RSA No. 7147 of 2011 of suit schedule property when said finding on question of possession has become final.
2. Whether the trial court right in going into question of possession when that issue already become final in earlier suit O.S. No. 37/2001 and in the said suit when court has already held that, plaintiff is in lawful possession of suit property.
3. Whether lower appellate court was right in confirming the said finding of the trial court on the said issues.
13. On issuance of notice, respondents/defendants have appeared before this Court through their respective counsel.
The Arguments:
14. I have heard the arguments by learned counsel Sri Shivakumar Kalloor, for the appellants and learned counsel Sri Manvendra Reddy, for the respondent No.1 and Sri B. Hanumantha Reddy, for respondent No.2.
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15. The learned counsel for the appellants would submit that in OS No.120/1986, Balakrishna Naik suffered injunction on the basis of the fact that the plaintiff- Ramachandra had proved his possession over the suit schedule property. It is submitted that the Civil Miscellaneous case filed by Balakrishna and OS No.91/1991 seeking cancellation of the decree in OS No.120/1986 were dismissed. Therefore, the observation of the court in OS No.120/1986 that the plaintiff Ramachandra is in possession and enjoyment of the suit schedule property has become final. He submits that at the instance of Balakrishna, one Sudhakar files a suit in OS No.125/1986 and the said suit ended in a compromise as per Ex.P9. The suit property was a different one and moreover, the plaintiff was not a party to the same and as such it has no relevance. He further submitted that Balakrishna inducted the defendant Shivaraya and induced him to file a suit in OS No.37/2001 against the plaintiff. The said suit was in respect of House No.20-2, alleged to be adjoining the suit property and the said suit came to be
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NC: 2023:KHC-K:7672 RSA No. 7147 of 2011 dismissed as per the judgment at Ex.P11. The regular appeal filed against the said judgment also came to be dismissed in RA No.158/2006. Therefore, he contends that the possession of the plaintiff over the suit schedule property was recognised and confirmed in subsequent suits and litigations. Therefore, he contends that the suit open space belongs to the plaintiffs-appellants herein and the defendants encroached the further portion, for which the plaint was amended by the plaintiffs by incorporating necessary pleadings and the prayer.
16. The learned counsel for the appellants-plaintiffs contend that the trial Court mainly went on the premise that the mutation entries based on the decree in OS No.120/1986 do not confer any title over the plaintiffs and therefore, the plaintiffs are not entitled for the declaration of title. He submits that the First Appellate Court also went under the premise that the City Survey No. 3688 shows the subdivision and this happened only on the basis of the decree in OS No.120/1986 but not on the basis of any
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NC: 2023:KHC-K:7672 RSA No. 7147 of 2011 enquiry regarding the title. He submits that undue importance had been given in respect of the City Survey entries and therefore, by holding that the mutation entries or the revenue records do not confer title, the First Appellate Court dismissed the appeal. He submits that the trial Court as well as the First Appellate Court failed to notice the principles of possessory title claimed by the plaintiffs. He contends that even in OS No.120/1986, the plaintiff-Ramachandra had claimed that he was the owner in possession of the property. He had the title to the property and therefore, his title was better than the title of the defendant-Shivaraya, who was claiming his title under Balakrishna Naik. Admittedly, the defendant-Shivaraya was a servant of Balakrishna Naik and therefore, the Courts below never considered the possessory title of the plaintiff-Ramachandra over the suit schedule property. Hence, he submits that the approach of the trial Court as well as the First Appellate Court was wrong.
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17. In this regard, he places reliance on the following decisions:
1. S Jagadish V/s. Dr. S. Kumarswamy1 regarding scope of Sec 100 of CPC.
2. Narayanswamy V/s. City Municipal Council, 2 Chintamani regarding scope of Sec 100 of CPC.
3. P. Krishnaveni and Others V/s. Sampath Raj and Another 3 regarding possessor's rights.
4. Shivshankara and Another V/s. H.P. Vedavyasa Char 4 regarding the possessory title.
5. Jayamma Venkatram (Smt.) and Others V/s. Ashraf Jahan Begum Major (Smt.) and Another 5 regarding possessory title.
18. Per contra, learned counsel appearing for the respondent Nos. 1 and 2 submit that OS No.120/1986 filed by plaintiff-Ramachandra was for injunction and the question of title was never involved in the same. He submit that Balakrishna had asserted his title over the suit schedule property in his written statement. He submits that dehors the decree in OS No.120/1986, plaintiff- 1 ILR 2008 KAR Page 87 2 HCR 2016 KAR 138 3 HCR 2020 KAR 544 4 Civil Appeal No. 10215/2011 dated 29.03.2023 5 HCR 2020 KAR 804.
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NC: 2023:KHC-K:7672 RSA No. 7147 of 2011 Ramachandra has not produced any documents to show his ownership or title over the suit property. He also submit that the date of dispossession and the occupation of the property by the defendants is also vague.
19. He also submits that the suit is not under Section 6 of the Specific Reliefs Act, but under Section 34 of the Specific Reliefs Act, and as such, the dispossession and possession should be within a period of six months. He contends that the entry of the plaintiff's name into the suit property is based on the decree in OS No.120/1986 and all other documents relied by the plaintiff was subsequent to the judgment and decree in the said suit. Therefore, he contends that when the suit is under Section 34 of the Specific Reliefs Act, the original owner i.e. Balakrishna Naik was a necessary party to the suit. Further he submitted that simply because there is an injunction against Balakrishna Naik, it cannot be said that the appellants/plaintiffs would succeed in the suit against the
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NC: 2023:KHC-K:7672 RSA No. 7147 of 2011 defendants herein. In support of his contention, he has placed reliance on the following decisions:
1. Vishnu Mahadeo Pendse V. The Rajen Textile Mills (P.) Ltd. and Another6 where it was held that the Official Liquidator is a necessary party when the auction purchaser questioned the rights of the purchaser who purchased the property from such Official Liquidator.
2.Ramaswamy Kalingaryar V. Mathayan Padayachi 7 where it is held that the finding on the possession not to be interrered in second appeal.
3. Union of India and Others V/s. Vasavi Cooperative Housing Society Limited and Others 8 which hold that burden of proving title is on plaintiff and weakness of the defendants cannot be a ground to succeed.
4. State of Madhya Pradesh V/s. Ushadevi9 which also hold that the burden of proof regarding the title and possession is on the plaintiff.
5. T.K.Mohammed Abubucker (D) Through LRS. and Others V/s. P.S.M Ahamed Abdul Khader and Others10 wherein it was held that the plaintiff has to prove his title and if the defendants are shown to be in adversary possession, the suit must fail.6
AIR 1975 SC 2079 7 AIR 1992 SC 115 8 (2014) 2 SCC 269 9 (2015) 8 SCC 672 10 2009 SCCR 750
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6. Shamsher Singh V. LT. COL. NAHAR SINGH (D) Through LRS11
7. Kapil Kumar V/s. Raj Kumar12 which distinguishes the question of fact and question of law.
8. Satyender V. Saroj13 which deals with the burden of proof.
9. Smriti Debbarma (Dead) Through LRS. V/s. Prabha Ranjan Debbarma And Others14 which deals with the possessory title.
10.Maria Margarida Sequeria Fernandes and Others v.
Erasmo Jack De Sequeria (Dead) Through L.RS15 which also deals with the possessory title. Facts and Findings in earlier suits/litigations:
20. The appellants-plaintiffs heavily rely upon the findings in OS Nos.120/1986, 125/1986, 91/1991, 37/2001, in order to contend that their possession over the suit schedule property was recognized and confirmed.11
AIR 2019 SC 4840 12 AIR 2022 SC 5054 13 AIR 2022 SC 4732 14 2022 LiveLaw (SC) 19 15 AIR 2012 SC 1727
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21. OS No.120/1986, as noted supra was filed by the plaintiffs against Balakrishna seeking perpetual injunction on the ground that the plaintiffs are in possession of the suit schedule property. The plaint in the said suit is produced and marked as Ex.P13. In the said suit, the plaintiff- Ramachandra had contended that the suit open space shown by letters ABCDEF in the hand sketch was part and parcel of house No.10-18. It was also averred that the Municipal records did not mention the measurement and sketch was not maintained by them. It was averred that the areas and particulars of the properties were surveyed for the first time by the City Survey Department about 12 years back and maps were prepared after any enquiry. It was further averred that the defendant-Balakrishna claims to be the owner of the southern agricultural land and he is trying to sell the same bit by bit and causing obstructions to the plaintiff by dispossessing him. It was averred that the plaintiff having come to know the mischief of the defendant, had sought for an injunction to restrain him perpetually from
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NC: 2023:KHC-K:7672 RSA No. 7147 of 2011 disturbing the possession of the plaintiff over the suit schedule property. A hand sketch match which is similar to one annexed to the present suit was also part of the said suit.
22. Later, the said Balakrishna filed Miscellaneous No. 85/1986 to set aside the ex-parte judgment in O.S.No.120/1986 which came to be dismissed on the ground of delay. Being aggrieved by the said order, Balakrishna had filed MA.No.134/1988 which also came to be dismissed as time barred. Thereafter, the said Balakrishna had filed O.S.No.91/1991 as per Ex.P14, wherein, he sought for a declaration against the plaintiff herein and his brother Lakshmana that the suit schedule property is of his ownership and a permanent injunction be issued against the plaintiff-Ramachandra and his brother- Lakshmana.
23. The said suit was opposed by the Ramachandra and Lakshmana by filing the written statement, wherein,
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NC: 2023:KHC-K:7672 RSA No. 7147 of 2011 the contentions taken up by Ramachandra in O.S.No.120/1986 were reiterated. The said suit came to be dismissed as abated by order dated 23.01.1999. Therefore, the decree in O.S.No.120/1986 as against Balakrishna has become final.
24. In the judgment of O.S.No.120/1986, the certified copy of which is produced at Ex.P5, it was stated as below:
"3. In the affidavit the plaintiff has sworn to the same facts which are mentioned in the plaint. It is the case of the plaintiff that the house and the adjoining site belong to him and his brother. The plaintiff has produced the city survey records and receipt for having paid the assessment. The deft has not filed any written-statement and thus the plaint averments the affidavit of the plaintiff remained unchallenged. Therefore, I believe the affidavit and the plaint allegations of the plaintiff. I hold that the plaintiff is in lawful possession of the suit property. The contention of the plaintiff that the defendant is trying to alienate the suit property is also not denied by the defendant. Therefore, the suit of the plaintiff deserves to be decreed."
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25. It is worth to note that the possession of the plaintiff-Ramachandra over the suit schedule property was the subject matter in the said suit. Obviously, the defendants in the present suit were not parties in O.S.No.120/1986. However, the above observation in O.S.No.120/1986, though not binding upon the defendants indicated that the plaintiffs herein were in possession and enjoyment of the same.
26. Thereafter, in the year 2001, the present defendant-Shivaraya filed O.S.No.37/2001 seeking a declaration that the permission granted by the Municipal Corporation in favour of Ramachandra and his family members and the map enclosed to such permission are illegal and the consequential injunction restraining from fixing any window, ventilators and doors etc on the northern and western side of house No.10-18. Obviously, the said house No.10-18 belonging to the plaintiffs herein. The said suit came to be dismissed after full fledged trial
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NC: 2023:KHC-K:7672 RSA No. 7147 of 2011 as per the judgment at Ex.P11. Issue No.1 and additional issue No.1 in the said suit read as below:
"Issue No.1: Do the plaintiff proves that, the L.Rs. of the defendant have no right to open any door, window and ventilator on the northern and western side of the house No.10-18 in plot No.12 pardl. No.13 of Brahmapur?
Additional Issue No.1: Whether Plaintiff proves that construction permission granted by Defendant No.2 dated 04.09.2003 is illegal, un-authorized, and against the provisions of law?"
27. Both these issues were answered in the negative in the trial Court and the suit came to be dismissed. It was held that the existence of house No.10-20/2 itself was not proved by the said Shivaraya (plaintiff in the said suit). It was also noticed by the Court that O.S.No.395/2019, the present suit, was still pending before the trial Court.
28. As against the said judgment, the said Shivaraya went in appeal in R.A.No.158/2006. The First Appellate
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NC: 2023:KHC-K:7672 RSA No. 7147 of 2011 Court by its judgment vide Ex.P23 para 20 has observed as below:
"20. On going to the entire evidence made available on record this court could not finds any efforts on the part of the Plaintiff to say how his privacy is going to be affected and on what angle and at what height the defendant herein is intending to open the doors and windows. The court below has rightly bestowed its attention to the document as per Ex.P.29 to 31 wherein the existence of the two windows on the ground floor, one window on first floor and two ventilators on the first floor that too touching the floor of the first floor could be seen."
Analysis and Conclusions:
29. In the above backdrop, the contentions of the appellants herein need to be considered by this Court. It is the case of the plaintiffs/appellants that they filed the suit for declaration and injunction in OS No.395/1990 and initially it was decreed. Thereafter, the defendant - Shivaraya filed RA No.70/2004 which was allowed and the
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NC: 2023:KHC-K:7672 RSA No. 7147 of 2011 matter was remanded with a direction to afford opportunities to the defendant to resist the suit. Though the plaintiffs/appellants herein challenged the same in MSA No.67/2005 before this Court, they were unsuccessful. In the result, the trial Court afforded opportunity to the defendants to adduce the evidence and by impugned judgment, the suit came to be dismissed.
30. The grounds for dismissal for the said suit were that the mutation entries, City Survey map and records was based on the decree in OS No.120/1986. It was also held by the trial Court that CTS No. 3688 was in respect of paradi No.13 and the sub division into CTS No.3688/1 and CTS No.3688/2 was not on the basis of the enquiry by the City Survey Authorities, but it was solely on the basis of the decree in OS No.120/1986. It was also observed that the said suit being only for injunction against Balakrishna, the entries in the City Survey records would not enure to the benefit of the plaintiffs. It was observed that the revenue entries do not confer title and there was no other
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NC: 2023:KHC-K:7672 RSA No. 7147 of 2011 material to show the ownership/title of the plaintiffs and therefore, the plaintiffs had not proved their title to the suit property.
31. It is significant to note that the decree in OS No.120/1986 held that the plaintiffs are in possession and enjoyment of the suit property and the defendant Balakrishna cannot interfere for such enjoyment. Later, Balakrishna had filed OS No.91/1991 seeking cancellation of the effect of decree in OS No.120/1986 and it came to be dismissed. Therefore, the findings in OS No.120/1986 and OS No.91/1991 operate against the said Balakrishna.
32. It is also important to note that the defendant in the present suit (OS No.395/1990) Shivaraya was a servant under Balakrishna. The defendant had admitted this aspect before the Court in Misc.No.85/1986. Ex.P7 which is the said deposition of Shivaraya shows that he was a tenant under Balakrishna and he used to take Shivaraya to the Hospital and therefore, Balakrishna could
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NC: 2023:KHC-K:7672 RSA No. 7147 of 2011 not contest the suit in OS No.120/1986. His categorical admission in Misc.Case No.85/1986 as per Ex.P7 show that he never claimed to be the owner in title of the suit property.
33. It is also worth to note that the defendant Sharanappa son of Shivaraya has deposed before the Court as DW1 and he has admitted that the owner of the suit property was Balakrishna son of Govinda Naik. Therefore, the fact that the defendants do not claim the ownership over the suit schedule property is not in dispute. It is not the case of the defendants that they had acquired any title in whatsoever manner from Balakrishna in respect of the suit schedule property. Therefore, their claim is only in respect of the possession.
34. Plaintiffs contended that they are in enjoyment of the property since prior to the decree in OS No.120/1986. During the pendency of the present suit, they got amended the plaint saying that they were dispossessed
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NC: 2023:KHC-K:7672 RSA No. 7147 of 2011 from an area of 6 ft. x 40 ft. which was in their possession and therefore, the possession may also be granted to them. In other words, they claimed the possession of the suit property to the extent of 6 ft. x 40 ft by virtue of the dispossession and the remaining property to be of their ownership and enjoyment since beginning.
35. It is also relevant to note that one Sudhakar had filed a suit in OS No.125/1986 before I Additional Munsiff, Gulbarga against Balakrishna claiming that he is the owner of a portion of the property in CTS No.3688/1 and the said suit came to be compromised on 7-9-1994 as per Ex.P9. The portion of the property which was the subject matter of the said suit is shown in Ex.P10. A perusal of the said sketch show that the plaintiff Ramachandra in the present suit was shown to be in possession of the suit schedule property. Therefore, it is clear that Balakrishna had impliedly admitted the possession of Ramachandra over the suit schedule property as per Exs.P9 and 10.
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36. Thus, the plaintiffs claim that they have better title than the defendants as they are in possession of the property and their claim is fortified by their possession over the property as depicted not only in OS No.120/1986 but also in OS No.125/1986. Coupled with this, the rejection of the claim of Balakrishna in OS No.91/1991, though not on merits, and also the rejection of the claim of the defendant Shivaraya that he do not have any house bearing No.10-20/2 adjoining the house of the plaintiff Ramachandra on the southern side as held in OS No.37/2001 goes in favour of the plaintiffs to establish that they are in possession and enjoyment of the suit property.
37. The scope of Section 100 of CPC concerning the Second appeals is one of the aspect to be noted before considering the interference that could be made by the Court of Second Appeal. The learned counsel appearing for the appellants/plaintiffs has placed reliance on a decision in the case of S. Jagadish Vs. Dr. S. Kumaraswamy
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NC: 2023:KHC-K:7672 RSA No. 7147 of 2011 since dead by LRs.16, wherein, the scope under Section 100 of CPC was discussed at length. It was held as below:
"Therefore, the law on the point is well settled. The concurrent findings recorded by the trial Judge as well as the First Appellate Judge on proper appreciation of the material on record should not be disturbed by the High Court while exercising its second appellate jurisdiction. However, it is not an absolute rule to be applied universally and invariably. When the Courts below ignore the weight of preponderating circumstances, allow the judgments to be influenced by inconsequential matters, when their judgment is based on misinterpretation of documentary evidence or on consideration of inadmissible evidence or ignoring the material evidence, or misdirected themselves in appreciating the question of law and place the onus on the wrong party, or when their finding has no basis in any legal evidence on record or on a misreading of evidence or suffers from any legal infirmity, the High Court would be justified in re-appreciating the evidence and coming to its own and independent conclusion, However the High Court should not in routine or causal manner by substituting its subjective satisfaction in place of the lower courts, interfere with the concurrent finding of fact."16
ILR 2008 Karnataka 87
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38. He also relied on a decision in the case of V.Narayanaswamy Vs. City Municipal Council, Chintamani17 , where again, the scope of Section 100 of CPC was considered by the Court. In para 11 it was observed as below:
"11. A substantial question of law does not necessarily mean a question of general importance. But the words "substantial question" would mean a question of law between the parties in the case involved. Non- appreciation of available evidence, erroneous appreciation of available evidence, erroneous construction of a document, which is the basis for determination of rights of parties would also tantamount to pure question of law. Keeping these aspects in mind, substantial question of law formulated in this appeal is being adjudicated and answered xxx"
39. As against this, the learned counsel appearing for the respondents has placed reliance on the decision in the case of Ramaswamy Kalingaryar Vs. Mathayan Padayachi18 wherein, it was held that "finding in favour of 17 HCR 2016 Karnataka 138 18 AIR 1992 SC 115
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NC: 2023:KHC-K:7672 RSA No. 7147 of 2011 certain party as to he being in sole possession of the land is a question of fact and cannot be questioned in a second appeal." It is to be noted that the question whether the trial Court and the First Appellate Court were right in construing the evidence in a proper perspective can be a question of law to be determined in the second appeal. The manner in which they appreciated the evidence and deduced the inferences was itself erroneous, then it can be a question of law. What is the question of law has been reiterated by the Apex Court in the case of Santosh Hazari vs. Purushotham Tiwari,19 where it succinctly lays down that "15. ............. Firstly, the findings of fact based on conflicting evidence arrived at by the trial court must weigh with the appellate court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of 19 2001(3) SCC 179
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NC: 2023:KHC-K:7672 RSA No. 7147 of 2011 the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate court is entitled to interfere with the finding of fact. The rule is -- and it is nothing more than a rule of practice -- that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lie, the appellate court should not interfere with the finding of the trial Judge on a question of fact. Secondly, while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it."
Therefore, if the Courts below have not at all bestowed their attention on the question of possessory title and did not consider the law applicable to the factual matrix of the case, definitely, it is a question to be
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NC: 2023:KHC-K:7672 RSA No. 7147 of 2011 addressed in the second appeal. It is in this context that the substantial questions of law framed by this Court become relevant for determination. If the conclusions reached by the Courts in OS No.120/1986 and OS No. 37/2001 coupled with the out come of the other cases were not properly appreciated and applied to the factual matrix in the proper manner, then it would definitely come in the realm of substantial questions of law. In that view of the matter, the contentions raised by the counsel for the respondents are not sustainable. The decision in the case of Ramaswamy Kalingaryar - supra, was not a case which dealt with the proper applicability of the law to the factual matrix. Hence, I find considerable force in the contention of the appellants that the substantial questions of law framed by this Court are definitely the matters which need to be determined under Section 100 of CPC.
40. The next question that falls for consideration is, whether the trial Court as well as the First Appellate Court were right in discarding the conclusions reached in
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NC: 2023:KHC-K:7672 RSA No. 7147 of 2011 previous litigations as framed in the substantial questions? Obviously, both the Courts below had not considered the principles governing the possessory title. They went under the premise that the plaintiffs have to prove absolute title to the property. They failed to notice that the plaintiffs are claiming the title on the basis of the possession. The plaintiffs never stated that they had obtained the title from any of their ancestrors or the vendors. Therefore, the approach of the trial Court as well as the First Appellate Court to find out and trace the title to the property was not proper. In fact, such an exercise could not have been done by them when the plaintiffs have sought the declaration and possession based on the possessory title.
41. The learned counsel for the appellants/plaintiffs contend that a person who is in possession of the property is presumed to be having title against any other person who is not in possession and such possessory title cannot go against the rightful owner. In this regard, he has relied on catena of decisions.
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NC: 2023:KHC-K:7672 RSA No. 7147 of 2011
42. The decision in the case of Shivashankar and another Vs. H.P. Vedavyasachar20 wherein, it was observed that " when the facts disclose no title in either parties, at relevant time, prior possession alone decides the right to possession of the land in the assumed character of owner against all the world except against the rightful owner."
43. He also relied on the decision in the case of Jayamma Venkataram (Smt.) and others Vs. Ashraf Jahan Begaum major (Smt.) and another21 wherein, it was held as below:
"22. The next question is, whether based on revenue documents, title of the plaintiffs can be declared? It is no doubt a settled position that revenue documents do not confer any title. But here is a case where the plaintiffs can produce no document other than revenue records to prove their title. As has been observed already, the Government issued acquisition notification showing Kyalanoor Muniswamappa as the owner of S. No. 6/1 which adds weightage to the presumptive value 20 Civil Appeal No.10215/2011 DD on 29.3.2023 21 HCR 2020 Kant.804
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NC: 2023:KHC-K:7672 RSA No. 7147 of 2011 attachable to revenue entries. Therefore, I am of the opinion that whenever a person has been in possession of an immovable property, especially ancestral in character, for quite a long time, and revenue entries stand in the lineage of his family continuously without any challenge to it, or if challenged, the same being overruled or rejected; and being not in a position to produce any document conferring title other than revenue records, there is no impediment to declare title based on possession which is otherwise called possessory title. If this kind of interpretation is not given, the title over a property will remain in vacuum, which should not be allowed to happen. Thus looked, the possessory title of plaintiffs 1 and 2 can be declared. The trial court's findings are not at all acceptable; its approach appears to be perverse; it has just proceeded on identity of the property without evaluating the intricacies. Therefore, point (i) is answered in the negative."
44. The question of possessory title was discussed at length by the Apex Court in the case of M. Siddiq Vs. Suresh das22 , wherein, it was held as below:
"Section 110 of the Evidence Act, 1872 provides that "When the question is whether any person is owner of anything of which he is shown to be in possession, the 22 (2020)1 SCC 1
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NC: 2023:KHC-K:7672 RSA No. 7147 of 2011 burden of proving that he is not the owner is on the person who affirms that he is not the owner." Section 110 deals with the burden of proof. Where the provision applies, the burden of proving that another person who is in possession is not the owner lies on the person who affirms against the ownership of that other person. But, for Section 110 to be attracted, there must be a question as to whether any person is the owner of anything and the ownership claimed must be that of which he is shown to be in possession. Section 110 of the Evidence Act, 1872 is based on the principle that title follows possession. That is why the provision postulates that where a person is shown to be in possession, and a question arises as to whether that person is the owner, the law casts the burden of disproving ownership on the individual who affirms that the person in possession is not the owner."
45. Further, the Apex Court in the case of Manjit Singh and others Vs. Shanti Devi and another23 in para 7 it was observed as below:
"7. After we heard the matter, we find substance in the argument of Shri Rohtagi. For obtaining relief of recovery of possession on the basis of possessory title in the land, the plaintiff was required to plead 23 2010(15) SCC 578,
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NC: 2023:KHC-K:7672 RSA No. 7147 of 2011 and prove that she was in possession over the land and was subsequently dispossessed. Unless the plaintiff avers in the plaint and proves that she has been dispossessed subsequently, she was not entitled to relief of recovery of possession on the basis of possessory title."
A coordinate bench of this court in P. Krishnaveni and Others V/s. Sampath Raj and Another24 has held that a person who has been in ling continuous possession can only protect the same by seeking an injunction against any person in the world other than true owner.
46. Per contra, learned counsel for the respondents relied on the decision in the case of T.K.Mohammed Abubucker (D) through RLs and others Vs. P.S.M. Ahamed Abdul Khader and others25. In this decision, the dispute was pertaining to the claim of the defendants about the adverse possessory title and therefore, the plaintiffs claim was time barred. In the case on hand, the 24 HCR 2020 KAR 544 25 (2009) SCCR 750
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NC: 2023:KHC-K:7672 RSA No. 7147 of 2011 plaintiffs claim that they were in possession of the property and the portion of it was dispossessed by the defendants and as such, have sought for declaration of the title and the possession of the portion of the suit property which they were dispossessed. Therefore, the above decision can very well be distinguished on facts.
47. The learned counsel for the respondents also relied on the decision in the case of Shamsher Singh Vs. Lt. Col. Nahar Singh (d) through LRs.,26 wherein, it was observed that "simply proving possession prior to dispossession by decree holder cannot put back the judgment debtor in possession." Obviously, said decision was pertaining to the dispossession by the decree holder and it was held that the judgment debtor has to prove his right, title or interest in the property. In the case on hand, the respondents have not claimed any title and the possession of the plaintiffs was established by various legal 26 AIR 2019 SC 4840
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NC: 2023:KHC-K:7672 RSA No. 7147 of 2011 proceedings. Therefore, the above decision is not applicable to the case on hand.
48. He also relied on the decision in the case of Smriti Debbarma (dead) through Legal representatives Vs. Prabha Ranjan Debbarma and others,27 wherein, it was held that, "a person in possession of land in the assumed character as owner and exercising peaceably the ordinary rights of ownership, has a legal right against the entire world except the rightful owner." In fact, this decision is more helpful to the appellants- plaintiffs than the respondents.
In Maria Margarida Sequeira Fernandes v. Erasmo Jack de Sequeira28, the Supreme Court while dealing with the rights of the non-owner regarding the possession, held as below.
"67. In an action for recovery of possession of immovable property, or for protecting possession thereof, upon the legal title to the property being 27 2022 Livelaw (SC) 19 28 (2012) 5 SCC 370
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NC: 2023:KHC-K:7672 RSA No. 7147 of 2011 established, the possession or occupation of the property by a person other than the holder of the legal title will be presumed to have been under and in subordination to the legal title, and it will be for the person resisting a claim for recovery of possession or claiming a right to continue in possession, to establish that he has such a right. To put it differently, wherever pleadings and documents establish title to a particular property and possession is in question, it will be for the person in possession to give sufficiently detailed pleadings, particulars and documents to support his claim in order to continue in possession. xxxxxx
70. It would be imperative that one who claims possession must give all such details as enumerated hereunder. They are only illustrative and not exhaustive:
(a) who is or are the owner or owners of the property;
(b) title of the property;
(c) who is in possession of the title documents;
(d) identity of the claimant or claimants to possession;
(e) the date of entry into possession;
(f) how he came into possession--whether he purchased the property or inherited or got the same in gift or by any other method;
(g) in case he purchased the property, what is the consideration; if he has taken it on rent, how much is the rent, licence fee or lease amount;
(h) If taken on rent, licence fee or lease--then insist on rent deed, licence deed or lease deed;
(i) who are the persons in possession/occupation or otherwise living with him, in what capacity; as family members, friends or servants, etc.;
(j) subsequent conduct i.e. any event which might have extinguished his entitlement to possession or caused shift therein; and
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NC: 2023:KHC-K:7672 RSA No. 7147 of 2011
(k) basis of his claim that not to deliver possession but continue in possession. xxxxxxxx
97. Principles of law which emerge in this case are crystallised as under:
(1) No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property.
(2) Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession. The caretaker or servant has to give possession forthwith on demand. (3) The courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant.
(4) The protection of the court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or licence agreement in his favour.
(5) The caretaker or agent holds property of the principal only on behalf of the principal. He acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession."
49. The remaining decisions relied by the learned counsel for the respondents lay down that the plaintiffs cannot rely on the weakness of the defendants to claim their rights and the plaintiff can succeed only on the bases of the evidence laid by him. In the case on hand, several judicial pronouncements against the defendants as well as
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NC: 2023:KHC-K:7672 RSA No. 7147 of 2011 the alleged real owner Balakrishna show that the plaintiffs were in possession of the property. Therefore, even without considering the evidence of the defendants it can be held that the possession of the plaintiffs was protected by the Courts. Therefore, the contention that the plaintiffs cannot rely on the weakness of the defendants is of no relevance in the case.
50. In view of the above discussions, it is evident that the plaintiffs had contended and established that they were in possession of the suit property and such possession was protected by decree in OS No.120/1986. Subsequently, the revenue authorities also enquired into the matter and CTS No.3688/1 and 3688/2 were carved out. Such carving out of CTS No.3688/1 and 3688/2 was also recognized in the compromise petition between Sudhakar and Balakrishna in OS No.125/1986. The respondents/defendants are admittedly claiming under the owner-Balakrishna, as such, they do not have better title than the plaintiffs. The plaintiffs are contending that they
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NC: 2023:KHC-K:7672 RSA No. 7147 of 2011 are in possession of the property since long time and as such, they have better title than the defendants. The lis between the plaintiffs and Balakrishna has culminated in favour of the plaintiffs.
51. The trial Court held that plaintiffs have not produced better title deeds/documents in order to establish that they are the owners of the property. It had also noticed that PW.3 had stated that the defendant- Shivaraya had entered into the suit property forcibly and started tethering cattle in the same. It was also admitted that Shivaraya was a servant under Balakrishna. Obviously, the trial Court did not notice that the plaintiffs were claiming title against the defendant-Shivaraya who was a worker under the said Balakrishna.
52. The First Appellate Court relied on the city survey records which showed that paradi No.13 constituted CTS No.3688 and later, it was sub-divided into CTS No.3688/1 and CTS No.3688/2 on the basis of the decree in
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NC: 2023:KHC-K:7672 RSA No. 7147 of 2011 O.S.No.120/1986. The First Appellate Court inferred that Paradi No.13 being of the ownership of Balakrishna, the entire CTS No.3688 also belongs to Balakrishna despite there belong no evidence, and as such, the sub-division into CTS No.3688/1 and CTS No.3688/2 would not be of any help to the plaintiffs. What was not noticed by the Court was that the plaintiffs were claiming the possessary title against Shivaraya and that Balakrishna had accepted the sub-division without any demur.
53. Under these circumstances, the approach of the trial Court in not relying on the decree in O.S.No.120/1986 and O.S.No.37/2001 was not proper as it overlooks the claim of the plaintiffs that they were claiming possessary title as against the defendants herein. Obviously, the defendant in O.S.No.120/1986 was Balakrishna, who according to the defendants was the real owner. Similarly, the trial Court was also not right in going into the question of possession when the Court in O.S.No.37/2001 had held that the defendant Shivaraya was not having any property
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NC: 2023:KHC-K:7672 RSA No. 7147 of 2011 on the southern side of the house of the plaintiff bearing No.10-18.
54. The First Appellate Court was also not right in totally relying upon the City Survey records alone. When the defendant-Shivaraya failed to establish that on the southern side of the house of the plaintiff-Ramachandra, he has a house bearing No.10-20/2 and when he was not the holder of the title in respect of the suit schedule property, the preponderance of probabilities lies in favour of the plaintiffs. These aspects were not at all considered by both the Courts below. Hence, the first and second substantial questions of law are answered in the negative.
55. Sofar as the third question of law is concerned, obviously, it has to held in the negative, for the reasons assigned to the first and second substantial question of law as above. In the result, the judgments and decrees passed by the trial Court as well as by the First Appellate Court are not sustainable. Hence, the following:
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NC: 2023:KHC-K:7672 RSA No. 7147 of 2011 ORDER
(i) The appeal is allowed.
(ii) The appellants/plaintiffs are declared to be the owners of the suit schedule property as against the defendants.
(iii) The defendants are hereby directed to handover the possession of the suit schedule property shown as ABCDEF in the plaint sketch to the plaintiffs within a period of three months from the date of this order.
(iv) Costs made easy.
Sd/-
JUDGE tsn* Sl No.: 2