Karnataka High Court
Sri Balappa S/O Late Gurappa vs State Of Karnataka on 6 January, 2023
Author: V. Srishananda
Bench: V. Srishananda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
R.F.A. NO.771/2006(INJ)
BETWEEN:
SRI BALAPPA
S/O LATE GURAPPA
SINCE DECEASED BY HIS LRS
1. SMT VENKATAMMA
WIFE OF LATE BALAPPA
AGED ABOUT 59 YEARS
2. SRI MUNIYAPPA
SON OF LATE BALAPPA
AGED ABOUT 40 YEARS
3. SRI MURTHY
SON OF LATE BALAPPA
AGED ABOUT 35 YEARS
4. SRI CHINNAPPA
SON OF LATE BALAPPA
AGED ABOUT 30 YEARS
5. SRI VENKATESH
SON OF LATE BALAPPA
AGED ABOUT 28 YEARS
2
6. SMT NAGARATHNA @ RATHNA
DAUGHTER OF LATE BALAPPA
AGED ABOUT 20 YEARS
7. SRI NAGARAJ
SON OF LATE BALAPPA
AGED ABOUT 25 YEARS
8. SRI MUDDAPPA
SON OF LATE BALAPPA
AGED ABOUT 22 YEARS
ALL ARE RESIDING AT
CHOLANAYAKANAHALLI,
KASABA HOBLI,
BANGALORE NORTH TALUK.
...APPELLANTS
(BY SRI A.SAMPATH, ADVOCATE)
AND:
1. STATE OF KARNATAKA
REPRESENTED BY TAHASILDAR
BANGALORE NORTH TALUK
BANGALORE-32
2. SRI C RAMAIAH REDDY,(DEAD)
SON OF CHODA REDDY
3. SRI MUNIREDDY
SON OF LATE C RAMAIAH REDDY
AGED ABOUT 49 YEARS
SINCE DEAD REPRESENTED BY HIS
LEGAL REPRESENTATIVES.
3(i) SMT.RATHNAMMA
W/O LATE MUNIREDDY
AGED ABOUT 50 YEARS
3
3(ii) SMT.PRATHIMA REDDY ALIAS BABY
D/O LATE MUNIREDDY
AGED ABOUT 25 YEARS
BOTH ARE RESIDING AT
NO.18, 6TH MAIN, CHOWDAIAH BLOCK
R.T. NAGAR
BANGALORE-560 032.
4. SRI GOVINDA REDDY
S/O LATE C RAMAIAH REDDY
AGED ABOUT 47 YEARS
5. SRI LOKAPPA REDDY
S/O LATE C RAMAIAH REDDY
AGED ABOUT 34 YEARS
ALL ARE RESIDING AT
PORTION OF THE LAND IN
SURVEY NO.93/2A,
OPPOSITE TO VIJAYA TALKIES,
CHAMUNDINAGAR,
R.T. NAGAR POST,
BANGALORE-560 032.
...RESPONDENTS
(BY SRI S.K.VENKATA REDDY, ADVOCATE FOR R3 (A AND
B), R4 AND R5; R2 -EXPIRED; SRI SHIVANANDA.D.S, AGA
FOR R1)
THIS RFA IS FILED UNDER SECTION 96 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 17.03.2006
IN O.S. NO.6287/1989 ON THE FILE OF I ADDL. CITY
CIVIL & SESSIONS JUDGE, BANGALORE CITY (CCH.NO.2),
DISMISSING THE SUIT FOR DECLARATION AND
PERMANENT INJUNCTION.
4
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 16.11.2022, COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT' THIS DAY, THE COURT
DELIVERED THE FOLLOWING:-
JUDGMENT
1. The present appeal is directed against the common judgment and decree dated 17.03.2006 passed in O.S. No.5183/1988 and O.S. No.6287/1989 whereby, the suit in OS No.6287/1989 is dismissed and the suit in OS No.5183/1988 is decreed with cost.
2. The parties are referred to as Plaintiffs and defendants for the sake of convenience, as per their original rankings before the Trial Court.
3. Among two suits, two appeals have arisen. This Court after hearing the parties and the learned Senior counsel, has passed a judgment in RFA No.770/2006 arising out of O.S. No.5183/1988 which reads as under:
"Sri S.K.Venkat Reddy, learned Senior counsel for the appellants has filed an interlocutory application No.1/2022 to dispose of the above appeal as infructuous.5
2. The said application is supported by an affidavit of Sri C.R.Lokesh Reddy. In the affidavit, it is contended that the deponent is respondent No.1(5) in the above case and since Sri C.Ramaiah Reddy has passed away so also the defendant in O.S.No.5183/1988 also passed away, the lis in O.S.No.5183/1988 has come to an end and the relief claimed by the plaintiffs therein has become infructuous. Accordingly, he sought for withdrawal of the suit in O.S.No.5183/1988.
3. The learned counsel for the appellants is served with the copy of the application. If the suit itself is sought to be withdrawn by the plaintiffs in O.S.No.5183/1988, the application is allowed.
In view of the withdrawal of O.S.No.5183/1988, this appeal stands disposed of as it has become infructuous."
4. O.S. No.6287/1989 is filed by Sri Balappa with the following prayer:
"Grant permanent injunction restraining the defendants two to five from unlawfully and forcibly entering upon the schedule property and disturbing the plaintiff's possession and damaging or destroying in any manner or from causing any hardship to the plaintiff and his family members.6
Directing the defendants to pay the plaintiff the costs of these proceedings."
5. The factual matrix of the case on hand are as under:
O.S. No.6287/1989 is filed against the defendants namely State of Karnataka, C.Ramaiah Reddy, Munireddy, Govindareddy and Lokappa Reddy from interfering with the peaceful possession and enjoyment of the vacant site measuring 40' x 60' which is carved out in Survey No.93/2A of Cholanayakanahalli, Kasaba Hobli, presently being called as Chamundinagar, RT nagar post, Bengaluru 32 with the following boundaries together with a hut measuring 20'x25' bounded on: East - by Kempaiah's property; West - by road; North - by road and South - by C.Ramaiah Reddy's property. Hereinafter referred to as 'the suit property' for short.
6. In the plaint, it is contended that plaintiff is residing in a small hut measuring 25' x 20' with open space around it in the schedule property as a Watchman to 7 look after the lands of one Kempaiah. Plaintiff had put up a hut in the suit property in the year 1961 and lived with his family in the said property owned by Kempaiah. He further deposed that Kempaiah had purchased 4 acres and 18 guntas of land in Survey No.93/2 from one Sonnappa and Mariyamma through a registered sale deed on 29.10.1940. Kempaiah, being the owner of the land, allowed the plaintiff to live in the schedule property for more than 28 years and whereby he has given up all his right, title and interest.
7. Plaintiff also contended that the said intention of Kempaiah is evidenced by an affidavit sworn to by Kempaiah in the year 1986. Thus, the plaintiff is in possession and enjoyment of the suit property. Plaintiff belongs to a weaker section of the society and a green card holder, wherein the address is shown as the suit property and he has exercised his franchise in the general election through voter card wherein also, the address of the plaintiff is shown as the suit schedule property. 8 Accordingly, plaintiff claimed that he is in un-interrupted possession over the suit property and perfected his title as a owner by adverse possession against Kempaiah. It is further contended that defendants 2 to 5 who are the adjacent owners of the suit property are trying to interfere with the peaceful possession and enjoyment of suit property even though there exists no right, title or interest in respect of the suit property in them.
8. He also contended that taking advantage of the illiteracy and poor social status of the plaintiff, defendants 2 to 5 are threatening plaintiff and family members with dire consequences and they forced him to vacate the suit property. On 27.10.1999, third defendant who is the son of the second defendant threatened and assaulted the plaintiff and his family members which resulted in filing of the complaint to the jurisdictional police against the third defendant. Plaintiff further contended that despite the complaint, the defendants 2 to 5 continued with the alleged threat to dispossess the 9 plaintiff resulting in filing of the suit with the aforesaid prayer.
9. In pursuance of the suit summons issued, defendants 2 to 5 resisted the suit by filing a detailed written statement denying the plaint allegations in toto.
10. The defendants contended that plaintiff is not in possession of the suit property much less the hut measuring 25x20 feet.
11. There is a specific contention that the portion of the suit schedule property was acquired by second defendant from Smt. Byri who became the owner of 22 guntas of land in Survey No. 93/2A representing her husband's share in the land. It is further contended that Smt. Byri persuaded the second defendant to purchase 22 guntas of land for a valuable consideration in a sum of Rs.10,000/- under an agreement of sale dated 8.9.1980. Smt. Byri also persuaded the second defendant to purchase the remaining portion of the land out of 22 guntas by receiving a sum of Rs.10,000/- on 30.10.1980 10 and thereafter, she has put the second defendant in possession of the land in question and her intention to sell the property was confirmed by executing Power of Attorney dated 10.10.1980.
12. It is further contended that after acquiring the land from Byri, second defendant has put up construction on the south eastern side of the land purchased after obtaining necessary plan and licence and a portion of the said constructed property is leased to Ramaiah and Ramaiah is in possession of the land as a tenant.
13. Second defendant had also put up a stone slab compound encroaching the portion of the property purchased by him on the western and southern side measuring 65' x 60' having an entrance on the western side and put up size stones compound on the northern side. The hut, which the plaintiff claiming is within the area of 60' x 65' enclosed by the stone compound as aforesaid. In fact, it was constructed by the second defendant measuring 12' East to West and 25' North to 11 South. It is contended by the second defendant that the said shed was constructed for storing the building materials. The defendants further deny that the contentions urged in the plaint that there was a threat to dispossess the plaintiff is incorrect.
14. Defendants 2 to 5 further contended that plaintiff has deliberately suppressed the suit filed by the second defendant in OS No.5183/1988 against the plaintiff seeking for the relief of ejectment, permanent injunction and recovery of a sum of Rs.150/- per month as damages and sought for dismissal of the suit.
15. It is further contended by the defendants that the plaintiff in order to have illegal gain has un- authorisedly occupied the suit property and sought for dismissal of the suit.
16. It is also contended by the defendants that plaint averments when read cumulatively, the prayer is only for an injunction and therefore, sought for dismissal of the suit.
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17. Plaint was also resisted on the ground of dis- joinder of necessary parties.
18. Based on the rival contentions, the Trial Court framed the following issues:
1. Whether the plaintiff proves that he was in lawful possession of the suit property on the date of suit ?
2. Whether the interference alleged is true ?
3. To what reliefs, if any, the plaintiff is entitled?"]
19. In order to prove the case of the plaintiff Balappa got examined himself as PW1. He has relied on 5 documents which were exhibited and marked as Exs.P1 to P5. On behalf of the defendants second defendant Sri Ramaiah Reddy is examined as DW1 and one Lokesh Reddy is examined as DW2. Defendants in all relied on 40 documents which were exhibited and marked as Exs.D1 to D40.
20. On conclusion of recording of the evidence, the learned Trial Judge heard the parties in 13 detail and passed the impugned common judgment which reads as under;
"The suit of the plaintiff in O.S.6287/1989 is dismissed. No order as to cost.
The suit of the plaintiff in O.S.5183/1988 is decreed with cost.
It is further decreed and ordered that the defendant Balappa/LRs shall vacate and deliver vacant possession of the plaint schedule property to the plaintiff's LRs within 90days. It is further decreed and ordered by way of permanent injunction, restraining the defendant Balappa's LRs, his agents, servants etc., from changing the identity of the property or from putting up any construction over the suit schedule property.
It is further ordered and decreed that the defendant Balappa on his death, his LRs, shall pay a sum of Rs.50/- per month as damages from July, 1988 to the date of delivery of possession.
Draw decree accordingly.
The original of the judgment is ordered to be kept in O.S.6287/1989 and copy of which shall be kept in O.S. 5183/1988."14
21. Being aggrieved by the dismissal of the suit in OS No.6287/1989, the plaintiff has preferred the present appeal with the following grounds:
"The judgment and decree rendered by the learned trail court judge is against the law, weight of evidence and probabilities of the case.
The learned trial court judge misconceived herself to the entire facts and circumstances of the case and thereby she has rendered erroneous judgment much against the law and facts and accordingly, she has not considered the various materials on record in a perspective manner.
The learned judge has not at all applied her mind to the facts and circumstances of the case and also not adverts the evidence on record in a perspective manner. She has rendered the judgment on the basis of assumptions and presumption and consequently, the finding of the learned judge is totally vitiated and liable to be set aside.
The learned judge ought to have seen that it is the definite case of the plaintiff that he is the absolute owner in possession of the entire schedule property measuring 40 X 60 feet, which is having definite boundaries, surrounded by compound and residing along with his family members in the same by putting up a hut thereon in the area measuring 15 20 x 25 feet, since 1961. This site is the portion of the land measuring 4 Acres 18 Guntas situated in Survey No.93/2A of Cholanayakanahalli belonging to one Sri.Kempaiah and this original plaintiff was looking after his land being a watchman since long time and the said Kempaiah given the schedule property to him in the year 1961 by giving up all his right, title over the same for the service rendered to him and this fact was also asserted by the said Kempaiah in the affidavit Ex.P-1 sworn by him. The defendants though deny the said facts, they have not produced any over whelming evidence to prove their title over the schedule property or part of it and consequently, the finding of the learned judge that the defendants are the owners of the same is liable to be set aside.
The learned judge ought to have seen that the defendants having admitted the possession of the plaintiff in the hut, have not been denied that which is the portion of the entire schedule site measuring 40 x 60 feet, having definite boundaries and surrounded by compound and consequently, as per Section 110 of the Evidence Act, when once the possession is admitted upon one part of the land shows possession in respect of entire land, which is laying within the defined boundaries. This presumption available under Section 110 of the Evidence Act in favour of the plaintiff, was not 16 rebutted by the defendants in any manner and the learned judge did not consider this aspect of the matter. while rendering the judgment and no finding is given to that effect and consequently, the judgment rendered by her is vitiated and liable to be set aside.
The learned judge ought to have seen that it is the settled position of law that the person in possession of the property can seek an order of permanent injunction, the who has no better title than him and consequently, the defendants herein, who have admitted the possession of the plaintiff, ought to have shown that the plaintiff is not having any better and valid title than themselves over the schedule property by producing the cogent evidence and other wise, the plaintiff is entitled for the order of permanent injunction. This position of law is not kept in mind while giving her finding the entire judgment is vitiated and liable to be set aside.
The learned judge ought to have seen that none of the documents produced by the defendants prove that the schedule property is the portion of the land fallen to the share of their alleged vendor Smt. Byri and her alleged daughter Smt.Muniyamma and further it is the portion of the alleged 9¼ Guntas of land said to have been purchased by the second defendant and however, the learned judge without adverting to the documents properly, and without 17 saying how the said documents proves the said fact, stated vaguely that these documents proves that the schedule property is the portion of the land fallen to the share of Smt.Byri and also the portion of the land purchased by the second defendant from Smt. Byri and her alleged daughter. Consequently, the judgment and decree rendered by the learned judge is totally vitiated and liable to be set aside.
The learned judge having given the finding that the circumstances goes to show a probability that because the plaintiff was allowed to live in the hut with some permission either from Smt. Byri or through Kempaiah before the partition, the defendant had not taken any such steps against the plaintiff, setting the criminal law into motion and disbelieved the case of the defendants that the plaintiff trespassed into the schedule property in the year 1988 before filing of the case for possession, have also failed to prove any better title over the schedule property than the plaintiff and consequently, the learned judge ought to have decreed the suit of the plaintiff for permanent injunction, irrespective of any defective title over the suit schedule property. However, the learned judge dismissed the suit on some extraneous and irrelevant considerations and therefore, the judgment rendered by her is unsustainable and liable to be set aside.18
The learned judge ought to have seen that none of the documents including Ex.D-17 demonstrate that suit schedule property has fallen to the share of Chikkabudugappa, in turn to his wife Smt.Byri alias Byramma and therefore, the conclusion of the learned judge that Ex.D-17 demonstrate that the suit schedule property has fallen to the share of Chikkabudugappa in turn to Smt.Byri and thus the plaintiff cannot claim any right through Kempaiah over the suit schedule property without any finding how the said Ex.D-17 demonstrate the said fact is unsustainable and liable to be set aside.
The learned judge further ought to have seen that the defendants have not at all established with any legal evidence to show that Kempaiah has sold the property fallen to his share in favour of Veeranna Shetty as per the sale deed dated 22.6.1962 marked as Ex. D-18. As could be seen from the said sale deed, it is clear that the Kempaiah has not at all executed the same in respect of his property and it is for the different property. Even though this fact was brought to the notice of the learned judge, she gave her finding that Kempaiah sold his share in favour of Veeranna Shetty. Therefore, the finding of the learned judge that Kempaiah has no right to give site to the plaintiff and also to execute Ex. P-1 is vitiated.
The finding of the learned judge that from the circumstances that Kempaiah has no right over the 19 schedule property and he has sold his share to third person, the schedule property has fallen to the share of Smt. Byramma and it could be believed that C. Ramaiah Reddy, the second defendant has purchased the same from her is totally perverse and based on extraneous considerations and the court itself make out the case for the defendants, though they have not established their case. consequently, the finding of the learned judge is totally unsustainable and liable to be set aside.
The learned judge ought to have seen that since the Smt.Byri alias Byramma did not get any title over the schedule property question of becoming the possession of the plaintiff as unlawful does not arise.
The learned judge ought to have seen that the defendants have miserably failed to establish that the schedule property is belonging to them in as much as the registered partition deed of the year 1944 produced by the defendants to show that through which their vendor got 1 Acre 8 Guntas of land towards her share does not indicate that the schedule property is the part of the same and further from the judgment passed in O.S. No.190/48-49 produced by the defendants themselves clearly shows that he 1944 partition deed was nullified as half extent out of 4 Acres 18 Guntas of land was gone to the share of the plaintiffs in the said suit and only 2 Acres 9 Guntas of land remains to the family 20 of Kempaiah and no evidence is forth coming to show that which half portion of 4 Acres 18 Guntas were retained by the Kempaiah and his family members after the said preliminary decree and its boundaries and similarly it is not established that when and how the Kempaiah and his Family members have divided the remaining 2 Acres 9 Guntas and which portion fallen to whom and then its boundaries and the schedule property comes under whose share and further whose share they have purchased and the schedule site is the portion of the land alleged to have purchased by them and further the witness Dw-1, himself categorically admitted in the cross examination that it is not possible to identify the boundaries of any body or locate the same as the entire land measuring 4 Acres 18 Guntas was fully developed. However, the learned judge dismissed the suit of the plaintiff, even though he has got better title than the defendants erroneously and consequently, the finding given by her is liable to be set aside.
The learned judge ought to have seen that the plaintiff herein produced the document to show that originally the schedule site is the portion of the land measuring 4 Acres 18 Guntas in Survey No.93/2A belonging to one Kempaiah and his family members and out of this land the said Kempaiah given this schedule site in the year 1961 by giving up all his 21 right, title over the same and this fact is also asserted by him by way of an affidavit and the plaintiff has been residing in the schedule site since then along with his family members as absolute owner thereof and also having possessory title over the same, having better title than the defendants in view of the fact that the defendants have failed to establish better title than the plaintiff, the suit for the plaintiff is ought to have decreed. However, the learned judge has dismissed the suit with extraneous consideration and consequently, the judgment and decree rendered by her is liable to be set aside.
The learned judge ought to have seen that the defendants have not at all denied the execution of the affidavit Ex. P-1 by Kempaiah and they cannot also being the third parties to the family of Kempaiah. Moreover, when we compare the signature of Kempaiah on the 50 year old documents produced by the defendants themselves, with the signature on Ex. P-1 in naked eye clearly shows that signature on Ex P-1 is of Kempaiah only and even though the execution of the Ex. P-1 has not denied and no other grounds have been urged by the defendant to disbelieve the Ex. P-1, the learned judge herself made out irrelevant grounds to the defendants and then dismissed the suit of the plaintiff and consequently, the finding of the learned 22 judge is arbitrary, capricious and wholly devoid of merits.
The learned judge ought to have seen that the suggestions which has been denied by the witness, has no evidentiary value in so far as the suggested party is concerned and whereas it has got evidentiary value in so far as the person denied it, if it goes against any fact, which he asserted earlier and consequently, when the Dw-1 denied the suggestion in the cross examination that in the year 1980 partition took place among the Kempaiah and his family members, it means the version of the Dw- 1 that partition took place in the year 1980 is falsified from his own denial and however, the learned judge surprisingly given a ridiculous finding that the very suggestion itself indicates that there was a in the year 1980. Consequently, the finding given by her is totally vitiated and liable to be set aside.
The learned judge ought to have seen that the plaintiff has not at all lead any inconsistent or contradictory evidence in respect of the boundaries of the schedule site or in respect of any other aspect and consequently, the finding of the learned judge that he has given contradictory evidence without saying how, is erroneous and unsustainable.23
The finding of the learned judge itself is contradictory and biased one and consequently, the judgment rendered by her is totally erroneous and liable to be set aside.
In any view of the matter, the learned judge ought to have seen that the plaintiff has established all the issues and the suit of the plaintiff ought to have decreed as prayed for and accordingly, the interference of this Hon'ble Court is called for."
22. Learned counsel for the appellant Sri A.Sampath, re-iterating the grounds urged in the appeal memorandum, contended that the Trial Court has grossly erred in not appreciating the case of the plaintiff in its proper perspective and wrongly dismissed the suit resulting in miscarriage of justice and sought for allowing the appeal.
23. He further contended that the material documents produced by the plaintiff such as certified copy of the sale deed, Ration card, voters list and copy of the plaint in O.S.No.5183/88, which were exhibited and marked as Exs.P2 to P5 are not properly considered by the 24 Trial Court which would prima facie establish that the plaintiff is in lawful possession and enjoyment of the suit property and sought for allowing of the appeal.
24. Per contra, learned counsel representing the respondent/defendants, vehemently contended that the learned Trial Judge has rightly appreciated the title in respect of the suit property placed by the defendants and also took into consideration the oral and documentary evidence on record in a proper manner and rightly dismissed the suit of the plaintiff and sought for dismissal of the appeal.
25. In view of the rival contentions of the parties, following points would arise for consideration:
(i) Whether the plaintiff has made out a case that he was in settled possession of the suit property and therefore, he was entitled for an order of injunction?25
(ii) Whether the impugned judgment is suffering from legal infirmity or perversity and thus calls for interference?
(iii) What Order?
26. The appellant/plaintiff-Balappa is examined as PW-1. He has deposed that he is the plaintiff in O.S. No.6287/1989. He has filed the suit in respect of the site measuring 60'x40' which is part of land in Survey No.93/2A of Cholanayakanahalli village. He has further deposed that he was working as a watchman under one Kempaiah and Kempaiah had orally granted the said land to him towards his services and thereafter, he was in possession and enjoyment of the said land. He has further deposed that defendants 2 to 5 tried to interfere with the possession of the property and therefore, sought for an order of injunction. He has marked Ex.P1 which is the affidavit given by Kempaiah in favour of the plaintiff and certified copy of the sale deed under which Kempaiah purchased the property from its erstwhile owner. He also 26 identified the ration card wherein, the address of the plaintiff is shown as the suit property.
27. In his cross examination, he has answered that he is residing in the suit property since 1961 and except Ex.P1 he does not have any other documents to show the right, title and interest over the suit property. He has stated that taxes are being paid by Kempaiah in respect of the suit property. He admits that he has not produced any documents to show the ownership over the suit property. He admits that the village panchayath had issued the show cause notice to him for running unauthorised pigary. He has deposed that he is not running pigary as on the date of the suit. He admits that land in Survey No. 93/2A measures more than 2 acres and entire land belongs to one Kempaiah. He denied the other suggestions.
28. As against this, defendants have specifically stated that they are the owners of the suit property having purchased the same and in that regard one of the legal representatives of the plaintiff in O.S. No.5183/1988, Sri 27 Lokesh Reddy is examined as DW-2 and DW-1 was one C.R. Ramaiah Reddy. Both these witnesses have deposed that suit property is the property belong to them and in that regard, Lokesh Reddy had relied on several documents which were exhibited and marked as Exs.P1 to P40 comprising of D1-General Power of Attorney; D2-sale agreement; D3-General Power of Attorney; D4-Affidavit dated 15.5.1992l; D5-affidavit dated 15.5.92; D6-Licence; D7-Sanctioned Plan; D8-Katha extract; D9-Tax paid receipt; D10 and 11 - certified copy of the compromise petitions; D12-Ration Card; D13-Additional Affidavit dated 3.11.1980; D14 and D15 - Certified copies of order passed in OS No.1693 & 1694/1985; D16-copy of notice; D17- Certified copy of the partition deed; D18-Copy of the sale deed; D19-certified copy of the compromise decree in OS No.190/48-49; D20- Original betterment charge receipt; D21-Tax paid receipt; D22-Katha extract; D23 to 25- Certified copies of three sale deeds; D26-certified copy of the katha extract; D27-Fee paid receipt; D28 to 31-Four photographs; D32 to 34-Negatives; D35 - copy of identity 28 card; D36 Ration Card copy; D37 to 40-copy of statements made before the police.
29. Since both the suits were clubbed the documents were ordered to be considered as D series and they are marked as Exs.D1 to D40 in O.S. No.6287/1989 referred to supra.
30. In the cross examination of either Ramaiah reddy or Lokesh Reddy, the learned counsel for the plaintiff in O.S. No.6287/1989 is unable to elicit any positive material to show that plaintiff Balappa had acquired any right, title and interest over the suit property. So also their cross examination did not yield any positive materials so as to advance the case of the plaintiff despite they have been cross examined in detail.
31. On cumulative consideration of the oral and documentary evidence on record, it is crystal clear that un- successful plaintiff has filed this appeal challenging the dismissal of O.S. No.6287/1989.
29
32. It is the case of the plaintiff that he was put into possession of the property by Kempaiah to evidence the same. He relied on the evidence executed by Kempaiah in his favour marked at Ex.P1. The affidavit reads as under:
"I Kempaiah S/o Muniswamappa, aged 70 years, resident of Cholanayakanahalli, Bangalore North Taluk, do hereby solemnly affirm and state as follows:-
1. I know Sri Balappa S/o Gurappa, aged 45 years, residing in my village namely Cholanayakanahalli. I am the owner of the land in S.No.93/2 of Cholanayakanahalli. I had retained the said Balappa as a Watchman for my lands including S.No.93/2. As he did not have any place to have shelter, I allowed him to use a portion of the land in S.No.93/2 measuring East to West 60 feet and North to South 40 feet about 25 years back. In the said site, the said Balappa put up a small hut 25 feet x 20 feet where he has been residing with his family. The site is in the occupation of the said Balappa for 25 years. He has been in possession and enjoyment of the said site as owner. He is also doing piggory business in the said site. I allowed him to have the site as owner so that he could have his own house.30
2. I affirm and state that I have given up all claims of right, title and interest in respect of the said site in the occupation of the said Balappa. As the said Balappa has been in possession and enjoyment of the said site with the hut thereon all these years, I have treated him as owner of the said site. I am willing to execute necessary deed in favour of the said Balappa to protect his interest to restrain the site. The site was valued at Rs.25/- about 25 years back and I found it not necessary to execute any deed in his favour. I declare that the said Balappa is the owner of the said site and I have no right, title and interest in the said land. The said Balappa is entitled to deal with the said site as owner."
33. No doubt, from the contents of the affidavit, it is crystal clear that Kempaiah had permitted him to live in the property. At best from the contents of the affidavit, it would only go to show that plaintiff was working as a watchman to keep a watch on the land in Survey No.93/2. Kempaiah is not examined.
34. Munivenkatappa is also not examined. The affidavit said to have been executed on 29.11.1986. No further proof is placed in order to probabalise the 31 genuineness of Ex.P1. It is mentioned that value of the site about 25 years earlier was only Rs.25/-. If at all if the value of the site is only Rs.25/-, Regular sale deed itself would have been executed by Kempaiah in favour of Balappa. The value is shown as only Rs.25/- in order to over come the non registration of the sale deed and so also to explain that it is a oral sale.
35. If the affidavit is executed in the year 1986, why Kempaiah is not examined as a witness in respect of a suit i.e., filed in the year 1989 is not explained by the counsel for the appellant. So also, if Kempaiah is no more what happened to Munivenkatappa is not forthcoming on records. If the suit property is exclusively belonged to Kempaiah, where were the necessity of Munivenkatappa executing an affidavit in favour of the plaintiff is also not explained. The recital in the affidavit does not mention anything about Munivenkatappa being an executor of the affidavit. If that were to be so, why signature of Munivenkatappa is found in the affidavit is not explained. 32 The contents of the affidavit would also go to show that it is in singular form and if there are two executors it should have been plural in its language. All these factors are not explained by the counsel for the appellant. Except Ex.P1, there is no other document which would establish the right, title or interest in respect of the suit property by the plaintiff.
36. Further, as rightly contended by the counsel for respondent, the contents of O.S. No.6287/1989 would clearly go to show that the plaintiff is claiming right over the suit property by way of adverse possession.
37. It is settled principles of law that if a person claims title over the suit property by adverse possession, necessary ingredients that he enjoyed the property by investing the title in a third person and thereafter, so enjoyed the property without any encumbrance for more than 12 years continuously. In the case on hand, no such pleadings are forthcoming. If Kempaiah is the owner and if he has sold, it should not lie in the mouth of the plaintiff 33 that he enjoyed the property, adverse to the interest of Kempaiah.
38. It is equally settled principles of law that plaintiff cannot take alternate plea and his stand should be firm and his pleadings should restrict to a particular right and he must make out his case based on that right.
39. In the case on hand, plaintiff is claiming that he is in possession of the suit property by virtue of the affidavit executed by Kempaiah on 29.11.1986, but he was put in possession of the property in the year 1961. If the sale itself is in the year 1961, there was no necessity to execute an affidavit on 29.11.1986. What prevented the plaintiff to have a regular sale deed executed by Kempaiah in his favour is not forthcoming on record.
40. The Notary who notorised Ex.P1 is not examined. So also the children of Kempaiah are examined on behalf of the plaintiffs to prove the genuineness of the documents.
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41. However, to show the possession over the suit property, except producing the voters ID and ration card, no other documents are forthcoming. Mere showing the address of suit property in the Voters ID or ration card itself is not sufficient to show that he is having ownership over the suit property.
42. PW-1 has admitted that Kempaiah has paid taxes but no such tax paid receipts are forthcoming on record.
43. All these matters have been rightly appreciated by the learned Trial Judge while appreciating the case of the plaintiff and dismissed the suit of the plaintiff through the impugned judgment.
44. Even after re-appreciation of the above material evidence on record, this court is of the considered opinion that plaintiff has not made out any case whatsoever to interfere with the impugned judgment. 35
45. Per contra, the material evidence on record would justify the finding recorded by the Trial Court in dismissing the suit of the appellant and decreeing the suit of the respondent with cogent, convincing and logical reasons.
46. In view of the foregoing discussion, Point Nos.1 & 2 are answered in the Negative.
47. REGARDING POINT NO.3: In view of my finding on point Nos.1 & 2 above, this court pass the following:
ORDER The appeal sans merit and accordingly, dismissed.
No order as to costs.
Sd/-
JUDGE PL*