Karnataka High Court
Smt Jayalakshmamma vs Smt Lakkamma Since Deceased By Her Lrs on 8 December, 2021
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY
RFA No. 176 OF 2012
BETWEEN:
SMT JAYALAKSHMAMMA
AGED ABOUT 68 YEARS
D/O PUTTAMARAPPA
BYLAKERE VILLAGE,
HESARAGHATTA HOBLI
BANGALORE NORTH TALUK-560 089..
... APPELLANT
(BY SRI S.R.HEGDE HUDLAMANE, ADVOCATE)
AND:
SMT LAKKAMMA
SINCE DECEASED BY HER L.Rs.
1. SMT.JAYAMMA
AGED ABOUT 57 YEARS
D/O LATE MARAPPA.
2. NANJAPPA
AGED ABOUT 53 YEARS
S/O LATE MARAPPA
3. RAMANNA
AGED ABOUT 49 YEARS
S/O LATE MARAPPA
RESPONDENTS 1 TO 3 ARE
RFA.No.176/2012
2
R/O BYLAKERE VILALGE,
HESARABHATTAHOBLI,
BANGALORE NORTH TALUK-560 089.
4. SMT B S JAGADHAMBA
AGED ABOUT 60 YEARS
W/O C SOMASHEKAR
R/AT NO.720, OLD PANCHAYATH
OFFICE ROAD,
YESHWANTHPURA
BANGALORE 560 096.
... RESPONDENTS
(BY SHRI P.N.RAJESHWARA FOR M/s GAUTAM
& RAJESHWA, ADVOCATE FOR C/R-4;
R-1 TO R-3 ARE SERVED)
THIS REGULAR FIRST APPEAL IS FILED UNDER SEC.96 OF
CPC., PRAYING TO SET ASIDE THE JUDGMENT AND DECREE
PASSED BY THE PRESIDING OFFICER, FTC -III (SESSIONS),
BANGALORE RURAL DISTRICT, BANGALORE, MADE IN
O.S.NO.1577/2008 DATED 02.11.2011 AND KINDLY PASS THE
JUDGMENT AND DECRE IN FAVOUR OF THE
PLAINTIFF/APPELLANT AS PRAYED IN THE SAID SUIT.
THIS APPEAL HAVING BEEN HEARD THROUGH PHYSICAL
HEARING/VIDEO CONFERENCING HEARING AND RESERVED ON
06.12.2021, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
RFA.No.176/2012
3
JUDGMENT
This is plaintiff's appeal. The present appellant as plaintiff had instituted a suit in O.S. No.1577/2008 in the Court of Presiding Officer Fast Track Court-III (Sessions), Bengaluru Rural District, Bengaluru (for brevity, referred to as the 'Trial Court') against the present respondents arraigning them as defendant nos.1 to 5 for the relief of declaration and permanent injunction.
2. Summary of the plaint averments in the Trial Court is that the suit schedule property which is an agricultural land bearing Survey No.27/3 measuring 36 guntas and situated at Bylakere village, Hesaraghatta Hobli, Bengaluru North Taluk, is the self-acquired property of one Maheswarappa, son of Putta Maranna. The said Maheswarappa is the brother of the plaintiff and one Smt.Ramakka. Maheswarappa had acquired the suit schedule property under the order of the Special Deputy Commissioner for Inams Abolition, Bengaluru. Later on, the revenue records were made in his name. Thus, right from the date of acquisition in the year 1958, Maheswarappa continued to be in lawful and peaceful possession and enjoyment of the suit schedule property till his death.
RFA.No.176/20124
It is the further plaint averment that the said Maheswarappa died without any issues. After his death, the plaintiff came in peaceful possession and enjoyment of the suit schedule property. Another sister of Maheswarappa by name Smt.Ramakka had also passed away. As such, the plaintiff acquired right, title and interest over the suit schedule property by way of succession, being Class-I heir of the deceased Maheswarappa.
It is also contended by the plaintiff that defendant no.1 is the wife and defendant nos.2 to 4 are the children of one Sri Marappa who is nowhere connected to the plaintiff nor deceased Maheswarappa. Marappa by playing fraud and misrepresentation and in collusion with the revenue authorities, got created revenue documents in his favour with respect to the suit schedule property. The said Marappa also created documents with respect to the suit schedule property in favuor of defendant no.5. The alleged transaction entered into between Marappa and defendant no.5 with respect to the suit schedule property is not binding on the plaintiff.
RFA.No.176/20125
The plaintiff who is an illiterate and does not know the worldly affairs of the proceedings in respect of the suit schedule property, came to know about the revenue entries made in the name of Marappa and thereafter in the name of defendant no.5, only on 29.07.2008. Through the revenue records, she also came to know about the alleged transaction between Marappa and defendant no.5. The plaintiff has further stated that being Class-I heir of deceased Maheswarappa, she is the owner and gets right, title and interest over the suit schedule property.
Stating that the cause of action for her to institute the suit arose on 29.07.2008 when she came to know the alleged revenue entries made in favour of defendant no.5, the plaintiff has prayed for the relief of declaration and permanent injunction.
3. In response to the summons issued to them, defendant no.5 alone appeared through her counsel and filed her written statement. Defendant nos.1 to 4 remained ex parte. Defendant no.5 in her written statement denied the plaint averment that the plaintiff has become the owner of the suit schedule property after the death of Maheswarappa. She also denied that the suit schedule property was the self-acquired property of RFA.No.176/2012 6 Maheswarappa. She took a specific contention that Maheswarappa did not have any issue and after his demise, the suit schedule property was transferred to the name of his cousin, Sri Marappa who was none other than his elder paternal uncle's son. She took the contention that the suit schedule property was originally allotted to Putta Maranna as per the order of the Special Deputy Commissioner for Inams Abolition. It is after the death of Putta Maranna that Khatha was made in the name of Maheshwarappa. She also contended that Marappa had every right to convey the suit schedule property to her. The plaintiff was aware of the transaction in respect of the suit schedule property between Marappa and herself (defendant no.5). She also stated that right from the date 10.04.1986, she has been in continuous and uninterrupted possession and enjoyment of the suit schedule property having purchased it under the registered sale deed dated 10.04.1986 from Marappa for valuable consideration. She also contended that all the revenue records stand in her name and she has been paying property taxes and peacefully using the suit schedule property as the absolute owner thereof. She contended that she is a bona fide purchaser of the suit schedule property for valuable consideration. She further RFA.No.176/2012 7 stated that for more than 24 years, i.e. from 10.04.1986, she has been in continuous peaceful possession of the suit schedule property and has been in open and hostile possession of the same to that of the real owner whomsoever and has perfected her title to the suit property by adverse possession. She also denied that the cause of action has arisen to the plaintiff on 29.07.2008.
4. Based on the pleadings, the Trial Court framed the following issues:
"1. Whether plaintiff proves that she is the owner in possession of suit property?
2. Whether plaintiff proves that she is in lawful possession of suit property as on the date of suit?
3. Whether plaintiff proves the alleged interference in her possession over the suit property by the defendants?
4. Whether plaintiff proves that 5th defendant has obtained document by fraud,, misrepresentation by Marappa in respect of suit property?
5. Whether defendant no.5 proves that he has perfected his title over the suit property by adverse possession as contended?
6. Whether the suit is barred by time?
7. Whether plaintiff is entitle to relief of declaration and permanent injunction as prayed? RFA.No.176/2012 8
8. What decree or order?"
5. In order to prove her case, the plaintiff got herself examined as PW-1 and got examined one Anjinappa as PW-2 and got marked documents Exs.P1 to P13. The defendant no.1 got herself examined as DW-1 and got examined one Venkatashamappa as DW-2 and got marked documents Exs.D1 to Ex.D31. After hearing both sides, the Trial Court by its impugned judgment and decree dated 02.11.2011, while answering issue nos.1 to 6 in the negative, proceeded to dismiss the suit of the plaintiff.
6. Aggrieved by the same, the plaintiff has preferred the present appeal.
7. In response to the notice served upon them, respondent No.4 is being represented through her counsel.
8. During the pendency of this appeal, the appellant has filed an interlocutory application numbered as I.A. No.1/2012 under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure, 1908 (for brevity, referred to as 'CPC') seeking amendment of the prayer column c (c).
RFA.No.176/20129
9. Records from the Trial Court are called for and the same are placed before the Court.
10. For the sake of convenience, the parties would be referred to as per their rank before the Trial Court.
11. Heard the arguments from both side. Perused the materials placed before this Court.
12. The points that arise for my consideration are:
(i) Whether the plaintiff has proved that she is the owner in possession of the suit schedule property?
(ii) Whether the plaintiff has proved that she is in lawful possession of the suit schedule property as on the date of the suit?
(iii) Whether the plaintiff has proved alleged interference by the defendants in her alleged possession of the suit schedule property?
(iv) Whether the suit is barred by time under the law of limitation?RFA.No.176/2012
10
(v) Whether the impugned judgment and decree warrants any interference in the hands of this Court?
(vi) Whether I.A. No.1/2012 filed by the appellant under Order VI Rule 17 read with Section 151, CPC deserves to be allowed?
13. The plaintiff who had got herself examined as PW-1, in her examination-in-chief in the form of affidavit evidence, has reiterated the summary of her plaint averments. She stated that her brother-deceased Maheswarappa had acquired the suit schedule property under the order of the Special Deputy Commissioner for Inams Abolition, Bengaluru. Accordingly, during the year 1959-60 itself, the Khatha of the property was transferred in the name of her brother-Maheswarappa and he continued to be in peaceful possession and enjoyment of the suit property till his death. After the death of her brother- Maheswarappa and her another sister-Smt.Ramakka who had also passed away by then, she (plaintiff) acquired lawful right, title and interest and ownership over the suit schedule property. She further stated that the husband of defendant no.1 and father of defendants 2 to 4 by name Marappa who had no connection RFA.No.176/2012 11 whatsoever either with deceased Maheswarappa or with herself, by playing fraud and misrepresentation and by colluding with the revenue authorities, got created documents in his favour with respect to the suit schedule property. Subsequently, he had sold the suit schedule property in favour of defendant no.5 which she (plaintiff) came to know only on 29.7.2008 when her son collected Record of Rights, Tenancy and Crop Inspection (for brevity, referred to as 'RTC') extracts with respect to the suit schedule property.
14. Thereafter, she preferred a revenue appeal before the Assistant Commissioner, Bengaluru North Sub-division, Bengaluru. The said Assistant Commissioner vide order dated 27.09.2010 allowed her appeal and cancelled the mutation effected in favour of defendant no.5 by the Tahsildar.
15. In support of her contention, PW-1 got produced and marked the genealogical tree of the family of Maheswarappa said to have been issued by the village accountant, Hesarghatta Hobli, Bengaluru North Taluk, at Ex.P1. RTC extract of the year 1959-60, index of lands for the same year were marked by her as Exs.P2 and P3 respectively. Copy of the endorsement dated RFA.No.176/2012 12 11.06.1958/14.08.1958 issued by the Office of the Special Deputy Commissioner for Inams Abolition, Bengaluru, was marked as Ex.P4. Copy of the order said to be of the Special Amaldar was marked as Ex.P5. Seven copies of RTC extracts were marked by her as Exs.P6 to P12. Copy of the order dated 27.09.2010 passed by the Assistant Commissioner, Bengaluru North Sub-division in RA(NA) 269/2008-09 was produced and marked by her as Ex.P13.
16. The plaintiff also got examined one Anjinappa as PW-2 who, in his examination-in-chief by way of affidavit evidence, has stated that the suit schedule property is the self-acquired property of Maheswarappa, son of Putta Maranna @ Putta Marappa. Plaintiff is one among the sisters of said Maheswarappa. He also stated that after the death of Maheswarappa, his properties were acquired by his sister, Smt.Jayalakshmamma (plaintiff) and from that day onwards, the plaintiff is in possession and enjoyment of the land of Maheswarappa.
18. Both these witnesses were subjected to detailed cross- examination from the defendants' side.
RFA.No.176/201213
19. Defendant no.5, Smt.Jagadhamba got herself examined as DW-1. In her examination-in-chief in the form of affidavit evidence, she has reiterated the contentions taken by her in her written statement. She stated that the suit schedule property was originally allotted to Putta Maranna as per the order of the Special Deputy Commissioner for Inams Abolition. After his demise, the Khatha of the suit property was made out in the name of his son, Maheswarappa. Said Maheswarappa died issueless and after his demise, the suit schedule property was transferred to the name of his cousin, Marappa. It is from the said Marappa who had become the owner in possession of the suit schedule property, she purchased the property under a registered sale deed dated 10.04.1986. She further stated that from the date she purchased the suit schedule property, she has been in peaceful uninterrupted possession and enjoyment of the same as the owner, cultivating the land by growing crops and also has got a borewell dug in the suit schedule property after obtaining electricity connection. She has stated that all the revenue records in respect of the suit schedule property stand in her name. At the conclusion of her examination-in-chief, she stated that she is a bona fide purchaser of the suit schedule RFA.No.176/2012 14 property for valuable consideration without notice of any defect in title. She is in continuous uninterrupted possession and enjoyment right from 10.04.1986 for over a period of 25 years an has thus perfected her title by adverse possession.
20. In support of her contention, DW-1 got marked 9 RTCs from Exs.D1 to D9, mutation register at Ex.D10, copy of Record of Rights (RoR) at Ex.D11, receipts regarding alleged payment said to have been made to Hesarghatta Farmers Co-operative Society at Exs.D12 to D16, agreement dated 11.4.1991 with respect to the alleged waiver of the loan at Ex.D17, electricity connection order at Ex.D18, electricity bills from Exs.D9 to D21, certificate of electricity connection issued by the competent authorities at Ex.D22, original sale deed dated 10.04.1986 at Ex.D23, tax paid receipts from Exs.D24 to D28 and three Encumbrance Certificates at Exs.D29, 30 and 31 respectively.
21. Defendant no.5 got examined one Sri Venkatashamappa as DW-2 who, in his examination-in-chief in the form of affidavit evidence, has stated that defendant no.5- Smt.Jagadhamba is cultivating the suit schedule property and growing crops including flowers and vegetables. He stated that RFA.No.176/2012 15 defendant no.5 and her husband have also put up a house in the suit schedule property and got dug a borewell in the suit property and also got electricity connection to the land.
22. Both these witnesses were subjected to detailed cross- examination wherein they adhered to their original version.
23. In the light of the above, the learned counsel for the appellant in his arguments, submitted that the family pedigree in Ex.P1 which remains an undisputed document shows that the vendor of defendant no.5-Sri Marappa was in no way connected to the family of the original grantee-Maheswarappa. The family pedigree produced by the plaintiff at Ex.P1 has not been denied or disputed by defendant nos.1 to 4. The suit schedule property was admittedly in possession of Maheswarappa as grantee and after his death without any issues, the property goes to the plaintiff who is his sister and as such, a Class-II heir. However, the Trial Court did not notice the same.
24. Learned counsel also submitted that defendant nos.1 to 4 did not file their written statement and did not contest the matter since they were quite sure that at no point of time, they RFA.No.176/2012 16 had any right, title or interest in the suit schedule property. He also submitted that no document was produced by the defendants to show that Marappa succeeded to the suit schedule property after Maheswarappa in the manner known to law. The mere production of RTCs would not prove the title of Marappa upon the suit schedule property. That being the case, when Marappa himself had no right, title and interest in the suit property, he could not have conveyed any better title to the alleged purchaser who is defendant no.5-Smt.Jagadhamba.
25. Learned counsel for the appellant further submitted that in the pleading as well as the evidence of PW-1 that she had no knowledge of the alleged sale made by Marappa in favour of Smt.Jagadhamba till 29.07.2008 itself clearly goes to show that the suit filed by her in the very same year in the year 2008 is not barred by the law of limitation. Further, when defendant no.5 herself contends perfection of her title over the suit schedule property by adverse possession, the question of limitation for the plaintiff in filing the present suit does not arise.
26. With respect to non-seeking of the relief of possession of the suit schedule property as prayer in the suit, learned RFA.No.176/2012 17 counsel submitted that under Section 34 of the Specific Relief Act, 1963, the Court has got ample power to grant the relief of possession in its discretion. However, learned counsel nowhere whispered any argument about I.A. No.1/2012 and the plaint averment of interference by the defendants in her alleged possession of the suit schedule property. In his support, he relied upon a few reported judgments which would be referred to at the relevant places here afterwards.
27. Learned counsel for defendant no.5 (respondent no.4herein) in his arguments submitted that the name of Maheswarappa in the mutation register was entered of late. However, after the death of Maheswarappa, it is the vendor of defendant no.5, ie. Marappa as owner who came in possession of the suit property from whom defendant no.5 has purchased the property under a registered sale deed. Thus, defendant no.5 has become the absolute owner in possession of the suit schedule property. He also submitted that defendant no.5 apart from being the owner of the suit schedule property under the registered sale deed in her favour, also continued to be in unabated possession of the property and as such, even if RFA.No.176/2012 18 her sale deed is found to be defective, her possession of the suit schedule property converts into adverse possession. Finally he stated that the act of defendant no.5 in getting a borewell dug in the suit schedule property and getting electricity connection cannot be done without the knowledge of the plaintiff and as such, the plaintiff's contention that it was only on 29.07.2008 she came to know about defendant no.5 being in possession of the property and getting revenue records made in her name, is unbelievable.
28. The plaintiff's contention is that the suit schedule property was granted to Maheswarappa by the order of the Special Deputy Commissioner, Inams Abolition, Bengaluru, whereas defendant no.5 in her written statement as well as in her evidence as DW-1, contended that the suit schedule property was granted to Putta Maranna who is the father of Maheswarappa. However, it is not in dispute that the suit schedule property was a grant land as long back as in the year 1959-60 by the order of the Special Deputy Commissioner, Inams Abolition, Bengaluru. Plaintiff through PW-1 reiterated the contention that the grant was in favour of Maheswarappa in RFA.No.176/2012 19 which regard she produced the extract of the register of RoR of the year 1959-60 of Bylakere village, Hesaraghatta Hobli, Bengaluru North Taluk at Ex.P2 and another document which is the index of lands of the same village for the same year. These two documents are not disputed from the defendants' side. These two documents clearly go to show that the grant was made in the name of Maheshwara bin Putta Marappa by the Special Deputy Commissioner, Inams Abolition, Bengaluru. Necessary entries regarding mutation were also made in the name of Maheswarappa as evidenced in these two documents.
29. Though defendant no.5 also produced a photocopy of RoR extract at Ex.D11, but the said document only shows that arrears has been recorded with respect to the suit property for the year 1980-81. Even in the said entry, it is the name of Maheswarappa that is shown. Therefore, it is established that the grant of the suit schedule property was in favour of Maheswarappa bin Putta Marappa. As such, Maheswarappa had been the owner in possession of the suit schedule property till his death.
RFA.No.176/201220
30. According to the plaintiff, Maheswarappa's wife by name Smt.Lakshmamma is dead, so also one Smt.Ramakka who is one of his sisters. Maheswarappa couple as well as Smt.Ramakka died issueless. As such, the property came to the plaintiff-Smt.Jayalakshmamma, she being the sole surviving sister of deceased Maheswarappa. According to the plaintiff, she is the Class-I heir of deceased Maheswarappa. It is her specific contention that Marappa who is said to be the alleged vendor of defendant no.5, was in no way connected either to Maheswarappa or the suit schedule property. As such, neither he can have any right, title and interest in the suit schedule property nor can convey the same to anyone including defendant no.5.
31. In support of her contention, the plaintiff has got produced and marked the family pedigree (genealogical tree) at Ex.P1. The said genealogical tree shows that Putta maranna who is undisputedly the father of Maheswarappa and one Bandi Nanjaiah were brothers and their parents were Bandi Chikkanna (father) and Smt.Karihanumakka (mother). The vendor of the suit schedule property to defendant no.5, ie. Marappa is one RFA.No.176/2012 21 among the children of Bandi Nanjaiah. Undisputedly Maheswarappa, Ramakka and the plaintiff, Smt.Jayalakshmamma are the children of Putta Maranna. This genealogical tree has not been specifically denied or disputed from the defendants' side, more particularly from defendants 1 to 4. Thus, it is established that Marappa and Maheswarappa are cousin brothers.
32. According to defendant no.5, after the death of Maheswarappa, the suit schedule property was transferred to Marappa. The said contention has been disputed by the plaintiff who contends that she is the successor of Maheswarappa as Class-I heir. In order to show that Marappa succeeded to the property of deceased Maheswarappa, except the oral statement to that effect by DW-1, there is no other evidence on record, much less documentary evidence. Moreover, even though defendant no.5 contends that the property was transferred in favour of Marappa, but she has not given any further details of the alleged transfer.
33. There can be transfer of an immovable property in several ways. Defendant no.5 has nowhere stated in what manner and when and also under what documentation (if any) RFA.No.176/2012 22 the suit schedule property was transferred in the name of said Marappa. No doubt she has produced a copy of the mutation entry at Ex.D10 and RoR extract at Ex.D11, but neither of these documents would show that the suit schedule property was transferred from Maheswarappa to Marappa and that Marappa became the owner of the said property. Therefore, the vendor of the suit schedule property to defendant no.5, who is said Marappa had no title or right in the property to convey the same to anyone including defendant no.5.
34. In order to show that she has purchased the property from Marappa and that she has mortgaged the same with a co- operative society for the purpose of raising a loan, defendant no.5 produced the original sale deed dated 10.04.1986 said to have been executed inher favour by Marappa at Ex.D23 and 5 receipts of payment of the alleged loan upon the mortgaged property with the co-operative society at Exs.D12 to D16. Ex.D23 has not been seriously disputed by the plaintiff. Still, the said document can only evidence and act as proof to establish that defendant no.5 purchased the suit schedule property from Marappa for valuable consideration. Exs.D12 to D16 would show RFA.No.176/2012 23 that the said property was subsequently mortgaged to a co- operative society and loan was raised. However, those documents would in no way prove the title of the vendor, ie. Marappa to enable him to convey any title in the suit schedule property in favour of anyone including defendant no.5.
35. The agreement dated 11.04.1991 which is at Ex.D17 also is an alleged agreement between Marappa with defendant no.5 with respect to the waiver of loan which in no way confirms title of the vendor upon the suit schedule property. Defendant no.5 as DW-1 in her cross-examination has admitted a suggestion as true that the said Marappa was in no way related to Maheswarappa. Therefore, it is clear that even though defendant no.5 was able to show that she purchased the suit schedule property from Marappa, but the said Marappa had no title or right in the said property to convey the same to defendant no.5.
36. The plaintiff claims herself to be Class-I heir of deceased Maheswarappa. Under Section 8 of the Hindu Succession Act, 1956, the property of a male Hindu dying intestate devolves firstly, upon his Class-I heirs and thereafter on RFA.No.176/2012 24 Class-II heirs. If there is no heir of any of the two classes, then upon the agnates of the deceased and lastly, if there is no agnate,, then upon the cognates of the deceased. The Schedule to the Hindu Succession Act, 1956 mentions as to who falls under Class-I category and who falls under Class-II category as the heirs of a Hindu male dying intestate. According to the same, a sister of a Hindu male dying intestate would not fall under Class-I category. Therefore, the contention of the plaintiff that she is Class-I heir of deceased Maheswarappa is not proved.
37. The plaintiff contends that she has been in possession of the suit schedule property which has been seriously disputed by defendant no.5.
38. The plaintiff contends that she has been in possession of the suit schedule property. The said contention has been seriously disputed by defendant no.5. As already observed above, the plaintiff as PW-1 and another witness, Anjinappa as PW-2, in their examination-in-chief, have stated that the plaintiff has been in possession of the suit schedule property after the demise of Maheswarappa. Though PW-2 in his examination-in- chief has taken the said stand, but in his cross-examination, he RFA.No.176/2012 25 has specifically stated that he could not say as to who is in possession of the suit schedule property. He also did not deny the suggestion made to him that defendant no.5, after purchasing the property in the year 1986, has been in possession of the suit schedule property. He has only expressed his ignorance to that effect. He also expressed his ignorance to the suggestion that it is defendant no.5 who has obtained electricity connection to the suit schedule property. He further stated that though earlier he had visited the suit schedule property, but he has not visited the place thereafter. These statements made by PW-2 in his cross-examination weakens the statements made in his examination-in-chief. Thus, his evidence is not trustworthy to believe. As such, what remains to analyze the alleged possession of the suit schedule property by the plaintiff is her own evidence, oral and documentary.
39. No doubt, PW-1 even in her cross-examination also has adhered to her original version that she has been in possession of the suit schedule property. In order to show that she is in possession of the suit schedule property, it is only Exs.P6 to P12 which are copies of RTCs which are the relevant documents. All RFA.No.176/2012 26 these documents except Exs.P11 and P12 in column no.9 show the name of Maheswarappa only, but not of the plaintiff. In Exs.P11 and P12, it is the name of defendant no.5 which is shown in column no.9 of RTC as the holder of Khatha and also as the person who is cultivating the land. Except for the year 1972- 73, for the remaining years, the name of the plaintiff is not shown even in column no.12 of RTC. Prior to 1972-73, it was the name of Putta Maranna as the cultivator which was shown in column no.12 and from 1973-74 onwards till 1986-87 when defendant no.5 purchased the property, it is the name of Marappa that is being shown in column no.12 as the cultivator in the RTC. From 1986-87 onwards, it is the name of defendant no.5 that is being shown. Thus, the plaintiff's evidence, both oral and documentary, is not sufficient to hold that she is in possession of the suit schedule property as on the date of filing of the suit in the year 2008.
40. On the other hand, defendant no.5 as DW-1 and one Venkatashamappa as DW-2 have deposed that it is defendant no.5 who has been in actual possession of the suit schedule property from the date of purchase of the property on RFA.No.176/2012 27 10.04.1986. Both these witnesses have withstood the test of cross-examination made from the plaintiff's side and adhered to their original version. DW-1 in support of her evidence, has also produced 9 RTCs from Exs.D1 to D9, mutation register extract at Ex.D10, copy of RoR extract at Ex.D11, all of which at the relevant years go to show that it is defendant no.5 who is in actual possession of the suit schedule property. Ex.D3 which is the RTC of the suit property records mutation entry passed in the name of defendant no.5 under mutation order dated 30.07.1986. Thus, in column nos.9 and 12, it is the name of defendant no.5 which is being shown. The said entry continues even in Exs.D4 to D7 which is up to the year of filing the original suit. Exs.D8 and D9 also show the name of defendant no.5 both in column nos.9 and 12 of the RTC up to the year 2010-11.
41. Even though the plaintiff has contended while producing Ex.P13 that the said revenue entry was challenged by her before the Assistant Commissioner, Bengaluru North Sub- division in No. RA (NA)269/2008-09 by filing an appeal under Section 136 (2) of the Karnataka Land Revenue Act, 1964, and that the said appeal came to be allowed, but after remanding the RFA.No.176/2012 28 matter to the Tahsildar, what happened to the objection of the plaintiff for entering the name of defendant no.5 in the revenue records is not made known to the Court. Still, the fact remains that as on the date of filing of the original suit before the Trial Court, the order of the Assistant Commissioner at Ex.P13 was not in existence and the relevant revenue entries were standing in the name of defendant no.5.
Defendant no.5 as DW-1 has also stated that after she purchased the suit schedule property, she has mortgaged the same to Hesarghatta Farmers' Co-operative Society and raised a loan and was repaying installments of the loan to the said Society for which she has produced 5 receipts marked as Exs.D12 to D16. These undisputed documents would also go to show that even by convincing the lender of the loan that she has been in possession of the suit schedule property, defendant no.5 could avail the loan from the said Society.
42. Exs. D18 to D31 which are documents pertaining to electricity connection to the suit schedule property and which includes electricity connection certificate and electricity bills, more particularly Exs.D18 and D22 are specifically in the name RFA.No.176/2012 29 of defendant no.5 make it further clear and acts as additional evidence to establish that it is defendant no.5 who has been in possession of the suit schedule property after she is stated to have purchased it from her vendor, Marappa. Though the said vendor had no right to convey title in the property, but the physical possession of the property has been delivered by him to defendant no.5. Exs.D24 to D28 which are tax paid receipts with respect to the suit schedule property for the relevant years also show that it is defendant no.5 who has paid the taxes of the suit property. Thus, it clearly establishes that the plaintiff is not in actual possession of the suit schedule property. As such, it has to be held that the plaintiff has not proved that he she has been in possession of the suit schedule property as on the date of the original suit.
43. The plaintiff neither in the plaint averment nor in her evidence as PW-1 has anywhere stated about the alleged interference by the defendants in her alleged possession of the property. Even the learned counsel for the appellant-plaintiff in his arguments did not canvass any argument on the point of alleged interference by the defendants in the alleged possession RFA.No.176/2012 30 of the suit property by the plaintiff. Apart from there being neither any pleading nor in the oral evidence on this point, there is not even any documentary evidence to infer the alleged interference by the defendants in the alleged possession of the suit schedule property by the plaintiff.
44. Defendant no.5 in the original suit, apart from taking the contention of his ownership over the suit schedule property, at the conclusion of the written statement, has also taken the contention that she has also perfected her title by adverse possession since from the date of the purchase of the suit property in the year 1986 and till date, she has been in uninterrupted possession of the suit schedule property. Issue no.(5) was framed by the Trial Court as to whether defendant no.5 has proved that she has perfected her title over the suit schedule property by adverse possession. After analyzing the evidence and in its reasoned finding, the Trial Court has answered the said issue in the negative. Thus, it has arrived at a finding that defendant no.5 could not prove that she has perfected her title over the suit schedule property by adverse possession.
RFA.No.176/201231
45. Admittedly, defendant no.5 has neither filed cross- objections nor cross-appeal under Order XLI Rule 22, CPC challenging the said finding of the Trial Court. Added to that, even in the arguments also, the learned counsel for respondent no.4 (defendant no.5) did not contend that defendant no.5 would challenge the said issue (issue no.(5)) without even filing cross- objections or cross-appeal. Still, learned counsel for the appellant, apart from making a submission that defendant no.5 has not proved that she has perfected her title by adverse possession, also relied upon few judgments in his support.
46. The first judgment relied upon by the learned counsel for the appellant is in the case of M.DURAI .v. MUTHU & OTHERS1 wherein the Hon'ble Apex Court held that the burden of proving adverse possession is on the defendant who takes such a plea in the case. In the process, the Hon'ble Apex Court had also referred to its previous judgment in the case of T.ANJINAPPA & OTHERS .v. SOMALINGAPPA & ANOTHER2 wherein it was observed as below:
1
2007 AIR SCW 6248 2 (2006) 7 SCC 570 RFA.No.176/2012 32 "It is a well organized proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must beopen and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action."
47. The other judgment relied upon by the learned counsel for the appellant on the point of adverse possession is the judgment of a co-ordinate Bench of this Court in the case of SMT.ANNAPURNA .v. SMT.SAROJAMMA3 wherein in similar circumstance where the defendant had taken the contrary plea of 3 ILR 2015 KAR 4308 RFA.No.176/2012 33 her alleged ownership over the suit schedule property and also perfection of title by adverse possession with respect to the same, the Court held that "the plea of adverse possession canvassed by the defendant which is a ground raised in the appeals too, cannot be reconciled with her primary plea of absolute ownership. By raising the plea of adverse possession, she is deemed to have admitted that the plaintiff was indeed the owner of the suit property. The tenor of alternate plea of adverse possession by the defendant is thus nebulous." It was further observed that "the plea of absolute ownership claimed by the defendant was in doubt and uncertain and therefore, a self- destructive plea." It is in the light of the finding of the Trial Court that defendant no.5 has failed to prove that she has perfected her title over the suit schedule property by adverse possession and also in view of the fact that the defendant throughout has primarily taken the contention that she having purchased the suit property under a registered sale deed and had thus asserted her ownership over the suit property has, in the instant case also, taken a self-destructive plea. As such, without much discussion on the issue of adverse possession which is already decided against defendant no.5 and since the RFA.No.176/2012 34 same having remained unchallenged, suffice it to say that even after re-appreciating the evidence placed before this Court, the finding given by the Trial Court on the said issue does not warrant any interference.
48. The Trial Court has answered issue no.(6) framed by it regarding the limitation aspect and has held that the suit filed by the plaintiff before it was barred by limitation. On the said point, the learned counsel for the appellant vehemently argued that the plaintiff had no knowledge of the sale by Maranna in favour of defendant no.5 till the year 2008 and therefore, no expiry of limitation can be complained in the matter. He further submitted that the plaintiff came to know about the alleged sale of the suit schedule property made by Marappa in favour of defendant no.5- Smt.Jagadhamba only in the year 2008 and as such, immediately she filed the appeal before the Assistant Commissioner, Bengaluru North Sub-division, Bengaluru, under Section 136(2) of the Karnataka Land Revenue Act, 1964, as can be seen from Ex.P13. As such, the finding of the Trial Court that the suit was barred by limitation was erroneous. RFA.No.176/2012 35
49. No doubt the plaintiff has called herself an illiterate lady and unaware of worldly affairs. However, admittedly she is a resident of the very same village where the suit schedule property is situated. Admittedly the suit schedule property is situated in a village called Bylakere. Further, the suit schedule property is an agricultural land measuring 36 guntas and therefore, any agricultural activity that is being carried on in the said open field would be visible to one and all passing by the said land. It is not the case of the plaintiff that after the death of Maheswarappa, she never visited the land. On the other hand, it is her contention that she has been in possession of the suit schedule property and is cultivating the same since the death of Maheswarappa till date. However, her contention that she has been in possession of the suit schedule property has been held as not established in the analysis made above. On the other hand, defendant no.5 has, apart from producing several revenue records, also produced Exs.D18 to D22 to show that she has got electricity connection to the suit schedule property much earlier, i.e. as long back as in the year 2002. Ex.D18 which is the sanction letter of electricity supply to the suit schedule property is corroborative evidence to that effect. In such a case of any RFA.No.176/2012 36 agricultural field, if electricity lines are drawn, no true owner of the land who claims to be in possession of the said land would keep quiet and refrain from taking appropriate action for several years which, in the instant case, is for a period of six years. Furthermore, the very plaintiff who has been examined as PW-1, in her cross-examination, has stated that she is aware that whosoever possesses land should pay taxes and maintain records, which means that though she claimed to be an illiterate lady, she is quite aware of the requirement of maintaining certain records with respect to the land under her ownership or possession and also the liability to pay taxes towards the land. In spite of having such knowledge, she has not got the revenue records made in her name for nearly 25 years after the sale of the suit property by Marappa in favour of defendant no.5 and for nearly 45 years from the date of death of Maheswarappa till the date she filed the appeal before the Assistant Commissioner, Bengaluru North Sub-division. Therefore, her self-serving statement which is not corroborated either by oral or documentary evidence to the effect that it was only on 29.07.2008 she came to know that the revenue entries have been made in the name of defendant no.5 and as such, the same RFA.No.176/2012 37 has given her the cause of action to file the suit, is not acceptable.
50. Since the plaintiff's main relief sought in the plaint is for declaration of her alleged ownership over the suit schedule property, limitation is three years to file the suit under Article 58 of the Schedule to the Limitation Act, 1963 from the date when the right to sue first accrues. Since the plaintiff has failed to establish that the right to file the suit accrued to her only on 29.07.2008, the Trial Court has rightly held that the suit was barred by limitation.
51. The appellant in this appeal has also filed an interlocutory application under Order VI Rule 17, CPC seeking permission to amend the prayer column for addition of the following prayer as prayer c(c):
"In case if the Hon'ble Court is of the opinion that the plaintiff is not in possession of suit schedule property, the defendants may be directed to deliver vacant possession of the property to the plaintiff to secure the ends of justice and equity." RFA.No.176/2012 38
In the affidavit accompanying the application, the appellant as deponent had précised her plaint averment and stated that since the Trial Court relying upon the revenue records, has proceeded to hold that she has not proved her lawful possession of the suit property as on the date of the suit, she is required to amend the plaint and to add the prayer for possession of the property also. Learned counsel for the appellant though has not addressed his arguments on the said application, however, he has left few judgments under Section 34 of the Specific Relief Act, 1963 in the file.
52. Learned counsel for the appellant has relied upon the judgment of a co-ordinate Bench of this Court in the case of CHINNAWWA .v. YALLAPPA AND OTHERS4 wherein in a suit for declaration and injunction, though the relief of possession was not sought, the relief of possession by exercising the power under Order VII Rule 7, CPC was granted. With respect to Order VII Rule 7, CPC, this Court held in the said case that "the said provision speaks about jurisdiction to grant the relief larger than the one claimed by the plaintiff. If no case is made out for 4 2014(5) KCCR 594 RFA.No.176/2012 39 granting the same, Order VII Rule 7, CPC cannot be invoked. Order VII Rule 7, CPC permits grant of a smaller relief to the parties. The relief of possession sought by way of an amendment is not a larger relief since larger relief is the relief of declaration of title by the plaintiff based on the occupancy right granted by the Tribunal. It is always open to the Court to give a plaintiff such general or other relief as it deems just to the same extent as if it had been asked for, provided that occasions no prejudice to the other side beyond what can be compensated for in costs."
53. Relying upon a judgment of the Division Bench of this Court in the case of VIJAY KUMAR & ANOTHER .v. SMT. MALINI V.RAO5 , learned counsel submitted that this Court has discussed about the discretion of the Court as to declaration of status or right and object of Section 34 of the Specific Relief Act in the said case. A perusal of the said judgment goes to show that though this Court in the said judgment has discussed the distinction between grant of a declaratory relief and consequential relief but was pleased to hold that the proviso to 5 ILR 2016 (3) KAR 2670 RFA.No.176/2012 40 Section 34 of the Specific Relief Act is imperative and makes it obligatory for every Court not to make any declaration in cases where the plaintiff being able to seek further relief, omits to do so. The suit should be dismissed if the plaintiff being able to seek further relief, omits to do so. Therefore, objection to the maintainability of the suit on the ground that it does not seek for grant of consequential relief must be taken up with promptitude.
54. In the instant case, admittedly the suit of the plaintiff is for the relief of declaration with a prayer to declare that she is the owner in possession of the suit schedule property and any alleged documents created by the husband of defendant no.1 and father of defendant nos.2 to 4 in favour of defendant no.5 is not binding on the plaintiff. By way of an amendment, the consequential relief of permanent injunction was also sought. However, since plaintiff was knowing at the time of fiing the suit that defendant no.5 is claiming to have purchased the suit schedule property under the registered sale deed and also to be in possession of the same, plaintiff has failed to seek the relief of possession which is a larger relief, which the plaintiff should have necessarily brought at the time of filing the suit. As such, RFA.No.176/2012 41 allowing of I.A. No.1/2012 at this stage since would cause serious prejudice to the interest of defendant no.5, it cannot be compensated even on terms, I am of the view that the applicant in I.A. No.1/2012 has not made out grounds to allow the application.
55. The above analysis would clearly show that the plaintiff though had taken the contention that she is Class-I heir of deceased Maheswarappa, has not been able to prove the same. Further, though she has claimed that she is the owner in possession of the suit schedule property, she could not even establish the same. It is after analyzing the materials placed before it the Trial Court has arrived at the same finding and I do not find any reason to interfere with the impugned judgment and decree.
56. Accordingly, I pass the following ORDER
(i) I.A. No.1/2012 stands dismissed.
(ii) The appeal stands dismissed. The judgment and decree dated 02.11.2011 passed in O.S.1577/2008 on the file of RFA.No.176/2012 42 the Presiding Officer, Fast TrackCourt-III (Sessions), Bengaluru Rural District, Bengaluru, is confirmed.
(iii) Registry to transmit a copy of this judgment along with Trial Court records to the concerned Trial Court without delay.
Sd/-
JUDGE vgh*