Karnataka High Court
Alamengada D. Belliappa vs Thanachira K. Kutappa on 25 October, 2023
Author: H.P. Sandesh
Bench: H.P. Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.S.A. NO.132/2017 (DEC)
BETWEEN:
1. ALAMENGADA D. BELLIAPPA
AGED ABOUT 42 YEARS,
S/O. A.B. DEVAIAH,
NITTOOR VILLAGE,
PONNAMPET NAD,
VIRAJPET TALUK,
KODAGU-571 219.
2. ALAMENGADA B. DEVAIAH
AGED ABOUT 81 YEARS,
S/O. LATE BELLIAPPA,
NITTOOR VILLAGE,
PONNAMPET NAD,
VIRAJPET TALUK,
KODAGU-571 219. ... APPELLANTS
(BY SRI K.S.PONNAPPA, ADVOCATE)
AND:
1. THANACHIRA K. KUTAPPA
S/O. LATE KARIAPPA,
AGED ABOUT 48 YEARS,
NITTOOR VILLAGE,
PONNAMPET NAD,
VIRAJPET TALUK,
KODAGU DISTRICT-571 219.
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2. THANACHIRA K. BOJAMMA
W/O. LATE KARIAPPA,
AGED ABOUT 63 YEARS,
NITTOOR VILLAGE,
PONNAMPET NAD,
VIRAJPET TALUK,
KODAGU DISTRICT-571 219. ... RESPONDENTS
(BY SRI PRASHANTH CHINNAPPA, ADVOCATE FOR R1;
VIDE ORDER DATED 02.08.2023, APPEAL AGAINST
R2 IS ABATED,)
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 07.10.2016
PASSED IN R.A.NO.91/2011 ON THE FILE OF THE II ADDL.
DISTRICT AND SESSIONS JUDGE, KODAGU-MADIKERI, SITTING
AT VIRAJPET, ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGMENT AND DECREE DATED 19.08.2011 PASSED IN O.S.
NO.90/2003 ON THE FILE OF THE CIVIL JUDGE (SR. DN),
VIRAJPET.
THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 05.10.2023 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellants and learned counsel for the respondent No.1.
2. The factual matrix of the case of the plaintiffs before the Trial Court while seeking the relief of permanent injunction, declaration and possession and future damage is that the first plaintiff is the son of the second plaintiff and they are absolute 3 owners of the suit schedule property. The said property came to the share of the second plaintiff in the family partition and the Jamabandhi stands registered in the name of the first plaintiff. He has cultivated the major portion of it about 5.00 acres with coffee and on the southern side, they have left the balance area of 2.90 acres as grazing land enclosed with fence. They had fenced the said land long back and using it for cattle grazing, firewood and also to go to forest land located closely. No one else has any claim or right over the said area. The defendants have lands in the southern side of suit property which is a vacant Bane land. Since about 30.06.1997, it was found that the defendants were clearing jungle of the area in their adjacent land for which the plaintiffs had no objection. But on 03.07.1997 at about 10.00 a.m., the first defendant with big gang workers damaged the southern side fence of the suit property and attempted to trespass into the suit property and forcibly occupy the same. The same was prevented by rushing to the spot and found that southern fence of the suit property was fully damaged and removed and the first defendant and his men were arranging to cut the jungle growth in the suit property. The 4 plaintiffs have protested at the highhandedness of the first defendant and his men but, they threatened the second plaintiff and A.P. Ganapathy and also forcibly occupied the suit vacant land on the southern side. The second plaintiff has lodged the police complaint to Ponnampet and Balele immediately. But, the police have not taken any action.
3. After filing the present suit, the plaintiffs have got amended the plaint and submitted that subsequent to filing the suit, taking advantage of the plaintiffs and his family members living away from the suit schedule property. During August 1997, the defendants have trespassed into the suit property forcibly and occupied it and enclosed it within their area. It is also contended that as per the application filed by the plaintiffs, a Commissioner was appointed and the said Court survey had revealed that the defendants have encroached upon an area measuring 2.90 acres in the suit property about 1½ years back. The area stated to be in possession of the plaintiffs in Sy.No.42 has already been purchased by the plaintiffs from the defendants under registered sale deed dated 21.02.1986. Hence, the 5 plaintiffs constrained to convert this suit for the relief of declaration and recovery of possession of suit property.
4. In pursuance of the suit summons, the defendants appeared through their advocate and filed the written statement and denied the averments of the plaint. The defendants contend that they are the absolute owners in exclusive possession and enjoyment of Sy.Nos.42/2 of 7.14 acres and 42/63 of 6.00 acres cultivated with coffee, orange and pepper situated at Nittoor village. In the month of March 1997, the defendants have cleared the jungle growth in the said land and made it ready for coffee cultivation. In the month of June 1997, the defendants have cultivated the said Sy.No.42/2 with coffee, orange and pepper. The fence in between the said properties bearing Sy.Nos.42/2 and 42/39C are more than 36 years old and it is intact. The plaintiffs are not having any vacant land adjacent to the coffee cultivated lands of the defendants. The suit schedule properties are not in existence and it cannot be identified. The defendants have not damaged the southern side of the fence of the suit schedule property and not attempted to trespass into 6 the said property. It is also contended that, at any time, the defendants have not attempted to trespass into the suit schedule property bearing Sy.No.42/39C and they have no right over the same. The alleged survey conducted by the plaintiffs are not binding on the defendants and the defendants have filed objection to the Commissioner's report. As per the Commissioner report, the plaintiffs have encroached the Bane land bearing Sy.No.42/2 of 2.75 acres.
5. It is also contended that during the pendency of suit in O.S.No.57/1997 before the Principal Civil Judge (Jr.Dn.) Virajpet, in the first week of August, 1997 the plaintiffs have unlawfully trespassed into the counter-claim schedule property and encroached the said area. The plaintiffs have no right, title or interest over the counter-claim schedule properties. They denied that the counter-claim schedule properties encroached by the plaintiffs in Sy.No.42/2 was already purchased by the plaintiffs from the defendants under the registered sale deed dated 21.02.1986. The counter-claim schedule properties and the properties purchased under the sale deed dated 21.02.1986 7 are entirely different and it has no connection whatsoever. Under the registered sale deed dated 21.02.1986, the defendants have sold 2.70 acres. But, as per the agreement executed between the second plaintiff and A.P. Ganapathy, the plaintiffs were in possession and they had right over 2.00 acres only. The said sale deed was executed, in order to overcome the Karnataka Fragmentation and Consolidation of Holdings Act. It is contended that defendants are in exclusive possession and enjoyment of the suit schedule properties openly, peacefully with the knowledge and adverse to the interest of the plaintiffs and thereby, perfected their title by adverse possession.
6. The Trial Court, taking note of the pleadings of the parties, framed issues and additional issues and allowed the parties to lead evidence and the plaintiffs examined the second plaintiff as P.W.1 and got marked the documents as Exs.P1 to 4. On the other hand, the first defendant is examined as D.W.1 and also examined two witnesses as D.Ws.2 and 3 and got marked the documents as Exs.D1 to D5. C.W.1 is also examined and got marked the documents as Exs.C1 to C3.
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7. The Trial Court, having considered both oral and documentary evidence placed on record, decreed the suit restraining the defendants from interfering with peaceful possession and enjoyment of the plaintiffs property bearing Sy.No.42/39C of Nittoor Village and also declared that the plaintiffs are the absolute owners of the suit schedule property and directed the defendants to handover actual possession of the suit schedule property to the plaintiffs within one month from the date of the order, failing which the plaintiffs can take necessary action for recovery of possession of the suit schedule property.
8. Being aggrieved by the judgment and decree of the Trial Court, two appeals are filed before the First Appellate Court in R.A.Nos.90/2011 and 91/2011. The First Appellate Court, having considered the grounds urged in the appeal memo, formulated the point whether the defendants prove that the impugned judgment and decree of the Trial Court is illegal, perverse and capricious. The First Appellate Court, having reassessed the material on record, dismissed the appeal in R.A.No.90/2011 in respect of counter-claim of defendant No.1 9 and allowed the appeal in R.A.No.91/2011 and set aside the impugned judgment and decree dated 19.08.2011 passed in O.S.No.90/2003. Being aggrieved by the judgment and decree of the First Appellate Court allowing the appeal in R.A.No.91/2011, the present second appeal is filed by the respondents therein.
9. Learned counsel for the appellants would vehemently contend that the First Appellate Court has committed an error in setting aside the judgment and decree of the Trial Court by erroneously mixing up the finding of the Trial Court with respect to the suit claim and counter-claim and failed to appreciate the evidence in right premise as it miserably failed to distinguish between evidence led by the parties to prove their respective claim over suit schedule property and counter-claim property. It is also contended that the First Appellate Court set aside the judgment and decree of the Trial Court on the ground that the plaintiffs had not produced any documents to prove their title and that the survey conducted is vitiated due to non-issuance of notice and due to non-joinder of necessary parties. 10
10. The learned counsel for the appellants would vehemently contend that the title of the plaintiffs is not disputed. Further, the defendants have categorically admitted that the property falling within Sy.No.42/39C i.e., the suit schedule property belongs to the plaintiffs. The plaintiffs have produced Jamabandhi to show possession and consequentially to substantiate their claim over title and the same has not been disputed by the defendants. The defendant No.1 during the cross-examination has specifically admitted that the suit schedule property belonged to the plaintiffs' family and has also stated that if it is found that he is in possession of any portion of the plaintiffs' land, he would willingly vacate from such property. The defendants in their written statement have admitted encroachment of the suit schedule property and have further proceeded to claim that its title over the suit schedule has been established by adverse possession. All these admissions have been grossly overlooked by the First Appellate Court.
11. It is further contended that the Trial Court rightly decreed the suit in favour of the plaintiffs and the First Appellate 11 Court committed an error in reversing the said finding and not applied its judicious mind. When the defendants have admitted encroachment of the suit schedule property and on consequent failure to prove adverse possession, the Trial Court had rightly decreed the suit in favour of the plaintiffs but, the First Appellate Court committed an error. The suit schedule property came to the plaintiffs' share through oral partition among family members. The suit schedule property has devolved among the plaintiffs' family for several generations none of which are disputed in the instant suit. The plaintiffs have never contended that the property was partitioned. However, the Court has erroneously on its own accord presumed the existence of the partition deed and has held non-production of the same against the plaintiffs. The plaintiffs have relied on Jamabandhi Ex.P2 to prove their possession and ownership and the same clearly evidences the fact that suit schedule property is in the name of Pattedhar of the Alamengada family and name of the second plaintiff is reflected in the 6th column indicating the fact that he is in possession and ownership of the suit schedule property. The Jamabandhi at Ex.P1 clearly shows that the plaintiffs were in 12 possession of the suit schedule property and paying all the land revenue. Inspite of these are the materials available on record, the First Appellate Court committed an error and hence, it requires interference of this Court.
12. Per contra, learned counsel for the respondent No.1 would vehemently contend that, at the first instance, the suit was filed for injunction and later on, the respondents sought for an order of declaration and possession of alleged encroachment. The counsel would vehemently contend that property is not identifiable and the First Appellate Court given the reasoning that the plaintiffs have not proved the title as well as the identity of the property and the First Appellate Court passed the well reasoned judgment. The counsel also would vehemently contend that the ADLR report is also repetition of earlier report and the First Appellate Court has not committed any error in appreciating the material on record and it does not require any interference of this Court.
13. In reply to the arguments of the learned counsel for the respondent No.1, learned counsel for the appellants would 13 vehemently contend that when the suit was decreed by the Trial Court, in coming to the conclusion that the plaintiffs are absolute owners and also since there was an encroachment, rightly ordered to the defendants to deliver encroached portion to the plaintiffs. The plaintiffs have not encroached any property and no dispute with regard to the title is concerned and the defendants are also not claiming title in respect of the suit schedule property. When such being the case, the First Appellate Court ought to have reversed the findings of the Trial Court.
14. Having heard the learned counsel for the appellants and learned counsel for the respondent No.1, this Court, while admitting the second appeal has framed the substantial questions of law which reads as under:
a. Whether the First Appellate Court could have reserved the Trial Court's judgment decreeing the appellants' suit for declaration of title and for possession of Jamabandhi land in Sy.No.42/39C of Nittoor Village when the appellants' title thereto was not disputed?
b. Whether the First Appellate Court could have dismissed the appellants' suit for possession of 14 the aforesaid land in the light of the evidence on record?
15. Having considered the grounds urged in the appeal as well as the substantial questions of law framed by this Court and also the submissions of the respective counsels, this Court has to analyze the material on record since there is a divergent finding. The Trial Court has accepted the case of the plaintiffs and decreed the suit and the same is reversed by the First Appellate Court. Now this Court, in keeping the substantial questions of law framed by this Court has to consider the evidence available on record whether the First Appellate Court ignored the material available on record.
16. It is not in dispute that it is the case of the plaintiffs that the suit schedule property belongs to them and specifically pleaded in the plaint that the said property came to the share of the second plaintiff in the family partition and the name of the second plaintiff is reflected in the 6th column indicating that he is in possession and ownership of the suit schedule property and the Jamabandhi at Ex.P1 stands registered in the name of the 15 first plaintiff and he has cultivated 5 acres of coffee and on the southern side, they have left the balance area of 2.90 acres as grazing land enclosed with fence and an attempt was made to encroach the same and the same was prevented. But, later on, the same was encroached. Hence, suit for bare injunction was converted as declaratory suit seeking the relief of possession in respect of the encroached area.
17. It is also important to note that in the schedule, it is mentioned as privileged Jamabandhi Sy.No.42/39C of total extent of 7.59 acres and out of this area, an area of 2.90 acres on the southern side of Sy.No.42/39C has been encroached. The defendants also in the written statement admitted in Para No.2 that plaintiffs are the owners of the property bearing Sy.No.42/39C. It is contended that the defendants are the absolute owners in exclusive possession and enjoyment of Bane land bearing Sy.No.42/2 measuring 7.14 acres and Sy.No.42/63 measuring 6 acres and not claimed ownership in respect of Sy.No.42/39C which has been claimed by the plaintiffs. But, 16 contend that the plaintiffs are put to strict proof of averments made in the plaint.
18. It is also contended that the alleged survey conducted by the plaintiffs is not binding on the defendants and the plaintiffs have encroached the Bane land bearing Sy.No.42/2 of 2.75 acres and now sub-divided as Sy.No.42/2 and 42/63 of 2.75 acres. It is also contended that during pendency of the suit in O.S.No.57/1997, in the first week of August 1997, the plaintiffs unlawfully trespassed into the counter-claim schedule properties and encroached the property and the plaintiffs are trespassers and they are in illegal possession of the counter- claim schedule properties. The allegation that counter-claim schedule property encroached by the plaintiffs in Sy.No.42/2 was already purchased by the plaintiffs from the defendants under registered sale deed dated 21.02.1986 is entirely false and put the plaintiffs to strict proof of the same. The counter-claim schedule properties and the properties under the said sale deed are entirely different.
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19. The plaintiffs have also filed the written statement to the counter-claim of the defendants denying the claim of the defendants. The mischievous illegal acts were exposed through the Court Commissioner and the encroachment of 2.90 acres is in Sy.No.42/39C and in order to get over such illegal acts, even though the defendants along with mother, brother and sister have jointly sold the area in Sy.No.42/2 to the second plaintiff and his nephew A.P. Ganapathy in the year 1986 under the registered sale deed dated 21.02.1986, the defendants are making false counter-claim to the very same property. The survey sketch clearly disclose that counter-claim and the property covered under the sale deed dated 21.02.1986 is one and the same and the boundaries are also the same. But, the first defendant has intentionally and mischievously given a twist and shown the western boundary as Sy.No.42/63 in his written statement with the counter-claim, instead of showing the Sy.No.42/21 and 42/1C. The same is done with a malafide motive to avoid and confuse the identity being fixed of the property sold by the defendants to the second plaintiff and A.P. Ganapathy under sale deed dated 21.02.1986. The contention of 18 the defendants that the suit schedule property is not in existence is denied and the property is very much in existence and the same is under illegal occupation of defendants since rainy season of 1997.
20. The plaintiffs, in order to prove their case, examined the second plaintiff as P.W.1, who filed the affidavit claiming that he is the second plaintiff and also the power of attorney holder of the first plaintiff and got marked the documents as Exs.P1 to P14. He was subjected to cross-examination. In the cross- examination, he admits that total extent of land is 7.59 acres in Sy.No.42/39C and claims that defendants are in encroachment of 2.90 acres and the description is also given. A suggestion was made that they have encroached the property and the same was denied. He admits that the property of the defendants is Sy.No.42/2 and also admits that in between two properties, there is a fence and the same is 50 year old. He also admits that he purchased the property from Uthappa along with A.P. Ganapathy i.e., 2 acres 70 cents on 21.02.1986. It is suggested that they have purchased 2.70 acres but, only 19 possession was given to the extent of 2 acres and the same was denied. He admits that, when they purchased the same, the same was Bane land. A suggestion was made that both of them have executed a consent deed in terms of Ex.D1 and the same was denied. He admits that he has filed the suit in O.S.No.57/1992 before the Municiff Court. He admits that when the suit written statement was filed, the suit schedule property was in their possession. It is suggested that they were not in possession of land to the extent of 2.70 acres from the last 36 years and the same was denied. He admits that, in the month of July 1997, they lost possession and it is suggested that the alleged encroached area is in possession of the defendants from the last 36 years and the same was denied. It is suggested that they encroached the property to the extent of 2.75 acres in Sy.No.42/2 in the year 1992 and the same was denied. He admits that Court commissioner has visited the spot and inspected the same and given the report. A suggestion was made that they have also encroached the property of the defendants and the same was denied. He admits that he is not having any objection to the Commissioner's report. It is 20 suggested that they have encroached the land in Sy.Nos.42/2 and 42/63 which is shown in the Commissioner's report and the same was denied. The witness volunteers to state that the same was purchased by them. He also says that they are having Coffee Registration Certificate (CRC) to the property which they have purchased i.e., 2.70 acres. It is suggested that CRC is only for 2.00 acres and the same was denied.
21. D.W.1 in his evidence admitted that plaintiffs are the owners of property bearing Sy.No.42/39C situated at Nittoor Village and entire property was cultivated and not vacant land and the plaintiffs have kept 2 acres 90 guntas on the southern side of the said survey number as grazing land with a fence is entirely false and reiterated the averments of the written statement. The fence in between the said properties bearing Sy.No.42/2 and the suit schedule property bearing Sy.No.42/39C are more than 36 years old and it is in tact and the plaintiffs are not having any vacant lands and the allegations made in the plaint are all false. In support of his claim, he also relied upon the documents of Exs.D1 to D4.
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22. D.W.1 was subjected to cross-examination and admitted that he himself and plaintiffs are neighbourers and suit schedule property is measuring 7 acres 59 cents and the same belongs to the plaintiffs and they are not having any title in respect of the suit schedule property and not demanding any portion in the property of the plaintiffs but, not ready to leave if any possession is with them in respect of the property of the plaintiffs but, claims that they have not occupied the property of the plaintiffs. He also admits that ADLR Commissioner came to spot and one Sri Nagaraj, employee of the ADLR surveyed the land and he was very much present at the time of conducting the survey and his mother also had signed the same along with him. It is suggested that Surveyor has given the report that they have encroached 2 acres 90 cents and the same was denied and also not claimed alleged encroached portion on the south of Sy.No.42/39C and Sy.No.42/2 is in existence. He admits that plaintiffs have given complaint to police and police called him and told him to get it survey the land but, he did not surveyed the land.
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23. D.W.1 also admits in the cross-examination that when the talks were held before the police, he admitted that if survey is done, if any encroachment is pointed out, he is ready to leave the same. D.W.1 also admits that in the total exten of 12 acres, 14 cents in Sy.No.42/2, they have sold 2 acres, 70 cents to Devaiah and A.P. Ganapathy and there is a sale deed i.e., Ex.P1 and he himself, mother and sister have signed the same. He also admits that except 2 acres, 70 guntas, they are in possession of the remaining extent in Sy.No.42/2. The land which they have sold in Sy.No.42/2 are in possession of Devaiah and A.P. Ganapathy. He also admits that he has not made any effort to identify the property specifically which has been shown in Ex.C2 in green colour. He also admits that they are not having any objection with regard to the property which was sold in favour of Devaiah and Ganapathy and both of them have cultivated the said property. He admits that when the Commissioner came to spot, they surveyed the land of the plaintiffs and his property. He has not given any complaint when the plaintiffs encroached his property. But, he claims that 30 to 23 35 years ago, they have encroached his property and the same is stated in his written statement. It is suggested that he is claiming that plaintiffs have encroached the portion which they have sold and the same was denied.
24. The defendants also examined one witness as D.W.2 and D.W.2 in his evidence claims that the plaintiffs have unlawfully trespassed into the defendants' land and encroached 2 acres, 75 guntas. For the last 36 years, the defendants are in exclusive possession and enjoyment of the suit schedule property openly, peacefully with the knowledge and adverse to the interest of the plaintiffs. This witness was subjected to cross-examination and he admits that he used to go to coolie work of defendants and also do contract coolie work and he cannot tell specifically as to how much extent was encroached and he had not signed any survey papers. But, admits that from the last 10 to 15 years, he is working with the defendants. He also admits selling of property to the extent of 2 acres 70 guntas to the plaintiffs by the defendants.
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25. The other witness is D.W.3 and he claims that on 21.02.1986, the second plaintiff A.B. Devaiah and A.P. Ganapathy have executed an agreement in favour of the defendants and others and he is one of the attesting witness. The defendants and others as per registered sale deed dated 21.02.1986 have sold 2 acres of Bane land. He was subjected to cross-examination. It is suggested that at the time of execution of Ex.D1, he was not present and the same is created and the same was denied.
26. The Commissioner-Surveyor is examined as C.W.1 and he had shown encroachment in NC-2 and also shown encroachment made by the plaintiffs in Sy.No.42/2 and Sy.No.42/63 to the extent of 2 acres, 75 guntas. He was subjected to cross-examination. He admits that stone set up to show the boundary were not in existence. He admits that, there will be difference in survey of Kadangadha from time to time.
27. Having taken note of the answers elicited from the mouth of witnesses particularly, D.W.1, it is clear that he has categorically admitted encroachment but, claim is made by the 25 defendants that they are in possession from the last 36 years. It is also stated that defendants not claimed any right in respect of 7 acres, 59 cents and the same belongs to plaintiffs and not asking any right in respect of suit schedule property. But, categorically says that if any encroachment, he is not ready to leave the said place. But, the fact that Commissioner came and inspected the property and they were very much present at the time of the survey is not in dispute and also plaintiffs have given the complaint to the police and the police have also directed to get it survey the land and also agreed that if any encroachment, he is ready to leave the same. The very evidence of D.W.1 is contradictory and at one breath, he says he is not ready to leave the place and before the Police he admits that, if any encroachment, he is ready to leave the same.
28. The fact that 2 acres, 70 guntas was sold in Sy.No.42/2 of the defendants in favour of the plaintiffs is not in dispute. The D.W.1 also admits that they are in possession in respect of the property which has been sold in their favour. It is also important to note that he has not given any complaint that 26 the plaintiffs have encroached the property but, claims that they are in possession from the last 30 to 35 years in the very property which they are claiming in the written statement and admit that property was sold in terms of Ex.P1 in favour of Devaiah and A.P. Ganapathy. It is also important to note that the defendants have not filed any suit and only made counter- claim and though D.W.2 gives evidence in favour of the defendants and he is an interested witness since, he is working with the defendants from the last 10 to 15 years and he also categorically admitted that he cannot tell as to what was the encroachment made by the parties and so also, the evidence of D.W.3 will not come into the aid of the defendants.
29. It is also important to note that in the cross- examination of P.W.1, a suggestion was made that though property was sold to the extent of 2 acres, 70 guntas, only given 2 acres and the said suggestion was denied. Hence, it is clear that 70 guntas was not given according to the defendants in view of suggestion made to P.W.1. The witness P.W.1 also admits that they have purchased only Bane land. It is suggested 27 to the P.W.1 that what he is claiming is that the defendants are in encroachment and the same is in possession of the defendants from the last 36 years. Hence, it is clear that there was encroachment by the defendants but, claim that the same is in their possession from last 36 years. In order to substantiate the same, no material is placed before the Court.
30. The Trial Court, having taken note of both oral and documentary evidence of the plaintiffs and defendants, rightly comes to the conclusion that there is an encroachment and pleading is also very clear that the defendants have encroached the property. But, the defendants also admit in the pleading that they are in possession of the said area from last 36 years and the defendants have unequivocally admitted in the written statement as well as in the evidence of D.W.1 that the plaintiffs are the owners of the property bearing Sy.No.42/39C. When such being the case, the First Appellate Court committed an error in reversing the findings of the Trial Court stating that there is dispute with regard to the ownership is concerned in respect of Sy.No.42/39C. Hence, the First Appellate Court 28 committed an error in coming to the conclusion that the plaintiffs are not the owners of the suit schedule property when the title of the appellants have not been disputed by the defendants. Hence, I answer substantial question of law (a) as 'affirmative', in coming to the conclusion that the First Appellate Court committed an error in reversing the findings of the Trial Court that the plaintiffs are not the owners.
31. The other substantial question of law (b) is that whether the First Appellate Court could have dismissed the appellants' suit for possession of the aforesaid land in the light of the evidence on record. I have already pointed out the evidence available on record that the pleadings are very clear that there was an encroachment on the part of the defendants and defendants also admitted the ownership and also admitted that defendants are in possession of the encroached area from the last 36 years, the issue is also with regard to the encroachment made by the defendants. No doubt, the suit is filed at the first instance for the bare injunction, thereafter specifically got amended the same. It is also important to note that the 29 evidence of D.W.1 is clear that at the time of survey of the suit schedule property by the Court Commissioner, they were also present in the spot and the employee of the Commissioner surveyed the suit schedule property in the presence of the plaintiffs and the defendants and the Court Commissioner submitted the report. At the time of survey, he has not complained to anyone that plaintiffs have encroached some area of the defendants property and D.W.1 also categorically admitted that, except 2 acres, 70 guntas in Sy.No.42/2, remaining area in Sy.No.42/2 is in actual possession and enjoyment of the defendants and the remaining area is newly numbered as Sy.Nos.42/63 and 42/2. When this admission is given by the defendants, the Trial Court taken note of the admission and rightly answered issue Nos.2 and 3 accordingly.
32. It is also important to note that the defendants in their written statement contend that suit schedule property is not in existence and it cannot be identified and contend that there is no vacant land as alleged by the plaintiffs in Sy.No.42/39C. It is the contention that plaintiffs were not in 30 possession of the suit schedule property from last 36 years and they have no right over the same. Taking note of the additional issue framed by the Trial Court consequent upon the claim of the defendants with regard to the adverse possession is concerned, it is very clear that, unless the ownership is admitted and possession is adverse to the plaintiffs, they cannot claim any adverse possession. The Trial Court, having taken note of the same, while answering issue No.5, taken note of material on record that the defendants claim the counter claim schedule property and they are the absolute owners of 2 acres, 75 acres in Sy.No.42/2 as shown in the counter claim schedule.
33. Admittedly, neither in the written statement in O.S.No.57/1997 nor in the written statement in O.S.No.90/2003, the defendants have contended that the plaintiffs have encroached over the counter claim schedule property and the defendants are the absolute owners of the counter claim schedule property. Since, the Court Commissioner in his report has shown an area which is alleged to be encroached by the plaintiffs in yellow colour of the survey sketch, the defendants have claimed right over the counter claim schedule property. 31 But, the plaintiffs have purchased 2 acres, 70 guntas in Sy.No.42/2 of Nittoor Village from the defendants for valuable consideration under the registered sale deed is not in dispute. The plaintiffs were in possession of 2 acres 70 guntas from last 30 years and out of an area of 13 acres, 14 guntas in Sy.No.42/2, they have sold 2 acres, 70 guntas in favour of Devaiah and A.P. Ganapathy and sale deed was also executed. D.W.1 categorically admitted that except 2 acres 70 guntas, they are in possession of remaining area in Sy.No.42/2 and the same is re-numbered as Sy.No.42/63 and the said admission clearly supports the case of the plaintiffs.
34. No doubt, the Court Commissioner in his report as alleged in the sketch has shown an area of 2 acres 75 guntas, the same has been encroached by the plaintiffs and the same was not brought to the notice of the Commissioner in terms of the sale deed Ex.P1 and admittedly, sale was made in favour of the plaintiffs to the tune of 2 acres, 70 guntas vide sale deed dated 21.02.1986 in terms of Ex.P1 and the same was also taken note by the Trial Court and answered the contention of the defendants as 'negative' while answering issue No.5. This 32 material has not been taken note by the First Appellate Court and committed an error in reversing the finding of the Trial Court in coming to the conclusion that the plaintiffs have not proved the title, inspite of there being a clear admission and also committed an error in reversing the findings of the Trial Court. Hence, I answer substantial question (b) accordingly in coming to the conclusion that the First Appellate Court committed an error.
35. In view of the discussions made above, I pass the following:
ORDER
(i) The appeal is allowed.
(ii) The impugned judgment and decree of the First Appellate Court in R.A.No.91/2011 dated 07.10.2016 is set aside and the judgment and decree of the Trial Court is restored restraining the defendants from interfering with peaceful possession and enjoyment of plaint property bearing Sy.No.42/39C of Nittoor Village and the plaintiffs are declared as absolute owners of the suit schedule property and the 33 defendants are directed to handover the actual possession of the suit schedule property to the defendants which is in their occupation within two months from the date of receipt of certified copy of this judgment and if the defendants fail to handover the same, the plaintiffs are at liberty to recover the same in accordance with law in an appropriate proceedings.
(iii) The Registry is directed to transmit the records to the Trial Court, forthwith.
Sd/-
JUDGE ST