Karnataka High Court
Veerabhadrayya C. Kadadevaramath, By ... vs Shri Siddeshwar Kadadevarmath on 23 August, 2012
Author: N.Kumar
Bench: N.Kumar
:1:
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
Dated this the 23rd day of August, 2012
Before
THE HON'BLE MR.JUSTICE N.KUMAR
REGULAR SECOND APPEAL No.5309 OF 2009
Between:
Late Veerabhadrayya Chandrashekharayya
Kadadevaramath
Since deceased by his LRs
1. Smt. Girijawwa
W/o. Late Veerabhadrayya Kadadevarmath,
Age: 57 Years, Occ: Pensioner.
2. Shri. Chandrashekar
S/o. Late Veerabhadrayya Kadadevarmath,
Age: 37 Years, Occ: Business.
3. Kumari Vijayalaxmi
D/o. Late Veerabhadrayya Kadadevarmath,
Age: 32 Years, Occ: Household Work.
Appellants 1 to 3 R/o. Jolad Oni,
Kadadevarpeth, Hubli-580 020.
...Appellants
(By Sri. Ashok R Kalyanshetty, Advocate)
1
:2:
And:
Shri. Siddeshwar Kadadevarmath,
Age: 75 Years, Occ: Pensioner,
R/o. Jolad Oni, Hubli-580 020.
...Respondent
(By Sri. D.H Pastay,
M/s. Pastay Law Associates for C/respondent)
This RSA is filed under Section 100 of CPC against
the judgment and decree dated 27.02.2009 passed in
R.A No.229/2002 on the file of the I Addl. Civil Judge
(Sr.Dn.), Hubli allowing the appeal, filed against the
judgment and decree dated 9.8.2002 passed in O.S
No.272/1995 on the file of the Prl. Civil Judge (Jr.Dn.)
Hubli, dismissing the suit filed for declaration and
possessions and mense profit.
This RSA coming on for orders this day, the Court
delivered the following:
JUDGMENT
This is the defendants' second appeal against the judgment and decree of the first appellate Court by which it set aside the judgment and decree of the trial Court and decreed the suit of the plaintiff as prayed for. 2 :3:
2. For the purpose of convenience, the parties are referred to as they are referred to in the original suit.
3. The plaintiff Sri Siddeshwar is the adopted son of Kadayya. The subject matter of the suit is property bearing C.T.S. No. 2890, C.W. Ward No. 2, Hubli, Dharwad District, consisting of a house a open space which is surrounded by the properties which are more particularly described in item no. 1 of the plaint and for short hereinafter referred to as the suit property.
4. The case of the plaintiff is the suit property originally belonged to his adopted father Kadayya Channabasaiah Kadadevaramath. It was under his management. After his death the name of his wife Smt. Gurubasavva was entered in the city survey records. After the death of Smt. Gurubasavva the plaintiff has become the absolute owner of the suit property. The 3 :4: defendants are his near relatives. The defendants were residing in the house premises on the permission granted to them by Smt. Gurubasavva, his mother. The defendants have no manner of right, title or interest over the suit property. After the death of Gurubasavva, the defendants are continuing in possession of the suit property on the permission granted by the plaintiff. The plaintiff was working in Police Department and he was transferred from place to place. During his absence from Hubli the defendants by giving false information to the City Survey Authorities got their name entered in respect of the suit property, which, he came to know recently. On coming to know of such mutation entry the plaintiff has withdrawn permission granted to the defendant and called upon him to deliver possession of the suit property. However, the defendant did not comply with the request and did not deliver possession. Therefore the plaintiff is constrained to file a suit for declaration and seeking possession treating the 4 :5: defendants as in unauthorized occupation of the suit property and also for mesne profits at the rate of Rs.100/- per month and cost of Rs.250/-.
5. During the pendency of the suit the second defendant, wife of the first defendant and the son of the first defendant were impleaded as parties. Defendant nos. 2 and 3 have filed a written statement denying all the allegations in the plaint. The defendants do not admit that the plaintiff is the adopted son of Kadayya. The plaintiff is put to strict proof of the same. The defendants have filed a suit against the plaintiff in O.S. No. 51/1988 on the file of Principal Civil Court. The case is set down for arguments. Therefore the plaintiff's suit is not maintainable. Therefore the suit is hit by Order 2 Rule 3 C.P.C. and it is liable to be dismissed on that ground . All the allegations in para no. 2 of the plaint are all false and the plaintiff has to prove lthe same. The Kadayya's elder brother was 5 :6: Veerabhadrayya. On his death as his children were all minors and as Kadayya and Veerabhadrayya were living together and Kadayya was the Manager of the joint family, the mutation entry was made in the name of Kadayya. However, neither Kadayya nor his wife Gurubasavva have any title to the suit property. The allegation that the defendants are in possession of the schedule property on the permission granted by Smt. Gurubasavva is without any substance. On her death, the defendants continued in possession on the permission granted by the plaintiff is also not admitted. Similarly during his absence from Hubli, the defendants got the mutation entries transferred to their name, is not correct. The plaintiff has not issued any notice before filing of the suit, the plaintiff is not entitled to any of the reliefs sought in the plaint. The plaintiff has not paid requisite fee for declaration of his title to the suit property. The plaintiff in the suit O.S. No. 51/1988 has not stated he has acquired the suit property under 6 :7: the false Gift Deed or by way of adoption. He is putting forth a false claim in the suit.
6. The first defendant has filed a memo adopting the written statement filed by defendant nos. 2 and 3.
7. On the aforesaid pleadings the trial Court has framed the following issues.
"1. Whether the plaintiff proves that he is legally adopted son of deceased Kadayya and Smt. Gurubasawwa Kadadevarmath?
2. Whether he further proves that he is lawful owner of suit property?
3. Whether he further proves that defendants are in possession of suit property with the permission of Smt. Gurubasawwa Kadadevarmath?
4. Whether suit is not maintainable as contended in para 3 of written statement?7 :8:
5. Whether the plaintiff proves that the defendants are liable to pay mense profits, if so at what rate?
6. Whether the plaintiff is entitled to relief of declaration, possession and mense profits?
7. What order or decree?"
8. The plaintiff in order to substantiate his claim, examined himself as P.W.1. He also examined a witness by name Siddalingayya Gurupadayya Aralelemath as P.W.2. He produced 3 documents which are marked as Ex.P.1 to Ex.P.3. On behalf of the defendants, Girijadevi wife of Veerabhadrayya was examined as DW1. Third defendant Chandrashekharappa Veerabhadrayya was examined as D.W.2. They have produced 17 documents which are marked as Ex.D.1 to Ex.D.17.
9. The trial Court on appreciation of the aforesaid oral and documentary evidence on record held 8 :9: that the plaintiff has proved that he is the legally adopted son of deceased Kadayya and Smt. Gurubasavva Kadadevaramath. It held that the plaintiff has failed to prove that he is the lawful owner of the suit property. It also held that the plaintiff failed to prove that the defendants are in possession of suit property with the permission of Smt. Gurubasavva Kadadevaramath. It held that the suit is maintainable and it is not hit by Order 2 Rule 3 CPC as contended by the defendants. The plaintiff has failed to prove that the defendants are liable to pay any mesne profits as claimed in the suit. Ultimately it held that the plaintiff is not entitled to the relief of declaration, possession and mesne profits and thus dismissed the suit.
10. Aggrieved by the said judgment and decree of the trial Court the plaintiff preferred a Regular Appeal. The lower appellate Court after hearing both 9 : 10 : the parties framed the following points for consideration.
"1. Whether the plaintiff/appellant proves that he is adopted son of late Kadayya and his wife Smt. Gurubasawwa Kadadevarmath and succeeded to the suit property after their death and he became owner of the property?
2. Whether the plaintiff/appellant proves that the finding given by the trial court on Issues 2, 3, 5 & 6 holding that the plaintiff has failed to prove that he is owner of the suit schedule property and defendants are in permissive possession of suit schedule property and he is not entitled to the relief of declaration, possession and mesne profits by answering Issues 2, 3, 5 & 6 in the negative as perverse, capricious, unreasonable, as such it warrants interference by this appellate court?
3. Whether respondent No.1 proves that the lower court is not justified in holding that the plaintiff is adopted son of late Kadayya 10 : 11 : and his wife Gurubasawwa and suit is maintainable, there is no bar U/o. 2 rule 2 despite present property is a subject matter of O.S No.51/88 wherein present plaintiff is also a party defendant, as such findings on Issues 1 & 4 is capricious and perverse which warrants interference by this appellate court as claimed in the cross objection?
4. What order?"
11. The lower appellate Court held that the plaintiff has proved that he is the adopted son of late Kadayya and wife Gurubasavva Kadadevaramath and succeeded to the suit property after their death and he became owner of the property. The findings recorded by the trial Court that the plaintiff has failed to prove his ownership over the suit property and that the defendants are in permissive possession of the suit property and he is not entitled to the relief of declaration, possession and mesne profits was set aside. Therefore it allowed the appeal, set aside the judgment 11 : 12 : and decree of the trial Court, declared that the plaintiff is the owner of the suit schedule property, directed the Assistant Director of Land Records, Hubli, to effect suitable entry in the C.T.S. Records by entering the name of the plaintiff. It also held that the plaintiff is entitled to recover vacant possession of the suit schedule property from the defendant. Six months time was granted to the defendants to vacate and hand over the possession of the property to the plaintiff. It also held that the plaintiff is entitled to recover past mesne profits at the rate of Rs.100/- per month. It held that the defendants are liable to pay Rs.3600/- towards past mense profits and also awarded future mesne profits at the rate of Rs.100/- per month.
12. Aggrieved by the said judgment and decree of the first appellate Court the defendants are in appeal. 12 : 13 :
13. In fact, this appeal is admitted to consider the following substantial question of law:
" i) Whether the lower appellate court is right and justified in holding in holding that Article 64 of the Limitation Act was applicable to the suit and hence the same was filed within the period of limitation?
ii) Whether the findings recorded by the lower appellate court holding that the defendantss were in possession of the suit property as licencees is supportable from the pleadings and the evidence on record?
iii) Whether the lower appellate court was justified in awarding mesne profits?"
14. After hearing the learned Counsel appearing for the parties at length, it is noticed that the dispute is with reference to the title of the schedule property. The trial Court held that the plaintiff has failed to prove his title to the suit property. The Lower Appellate Court has 13 : 14 : held that the title is proved. Therefore the real substantial question of law which arise for consideration in this second appeal is whether the finding recorded by the Lower Appellate Court that the plaintiff has established his title is supported by legal evidence on record?
15. Therefore the following substantial question of law is raised as additional substantial question of law, i.e., "Whether the finding of the Lower Appellate Court that the plaintiff has established his title to the suit property is supported by legal evidence on record?"
16. The learned Counsel appearing for the appellants assailing the impugned judgment and decree of the Lower Appellate Court contended that the suit property fell to the share of the defendants' father at a 14 : 15 : family partition. However, as the adoptive father of the plaintiff namely Kadayya was the head of the family, after the death of other members, mutation entries continued in his name. Subsequently, steps were taken to get the mutation entries transferred to their name. It is well settled that the mutation entry is not a document of title. In fact, the plaintiff relied on Ex.P-1, the certified copy of the judgment in O.S.No.51/88, Ex.P-2, the certified copy of the decree in O.S.No.51/88. The appeal preferred against the judgment and decree by the defendants before this Court in RFA 944/2000 is allowed, setting aside the judgment and decree of the trial Court and in the said appeal, it is held that the suit properties has fallen to the share of defendants. The plaintiff herein is the 12th defendant in the said suit and in the light of the aforesaid judgment, the judgment and decree passed by the Lower Appellate Court requires to be set aside.
15 : 16 :
17. Per contra, the learned Counsel appearing for the respondent-plaintiff submitted that the property belongs to his father Kadayya. It is evident from Ex.P-3, the mutation entry, the defendants have not challenged the title of Kadayya nor have they disputed the partition in the family. In those circumstances, the plaintiff did not produce the partition deed and therefore he submits that Ex.P-3 establishes his title. Further he submitted that in O.S.No.51/88, the gift deed executed by plaintiff's adoptive mother in favour of the plaintiff is up held. The suit property is not the subject matter of the gift. Therefore, by inheritance, he has succeeded to the said property. In that view of the matter, the Lower Appellate Court was justified in granting decree of declaration and other consequential reliefs. Therefore he submits that no case for interference is made out.
18. The admitted material on record shows that the defendants herein filed original suit in O.S.No.51/88 16 : 17 : for the relief of partition and separate possession of their share in the plaint schedule properties mentioned in the said suit. The suit property is one such item, which is at Sl.No.7 in the schedule. The defendants contested the suit denying the plaintiff's claim. It is after filing of the said suit, the present suit O.S.No.272/95 is filed for declaration that the suit property exclusively belongs to the plaintiff having inherited from his father. The trial Court unfortunately did not look into the evidence on record. It relied on Ex.D-3, the Vardi given by the plaintiff in the year 1963, on the basis of which, the defendants name came to be entered in respect of the suit properties. In Ex.D-3 it is stated that the property bearing No.2890 and 2885A has fallen to the share of Veerabhadhrayya, the adopted son of Chandrashekarayya Kadadevaramath. It is in his possession. Therefore he has no objection for mutating his name. According to the trial Court, the said statement is fatal to the case of the plaintiff. Though 17 : 18 : the said document was denied by the plaintiff, the trial Court choose to act on the said statement. When it was contended that the adoption deed in favour of the plaintiff has been up held in O.S.No.51/88, the trial Court declined to take note of the said fact on the ground that the appeal against the said judgment and decree is pending before the High Court and therefore the said question cannot be gone into in the suit as the matter is pending before the High Court. Thus it proceeded to hold that the plea of permission is not established. Ex.D-3 gives an indication that after the death of Gurubasavva, the plaintiff forfeited his right to the suit property. Therefore it dismissed the suit of the plaintiff. It was of the view that the present suit is filed as a counter blast to the suit filed by the defendants, as admittedly the defendants are in possession of the property from the inception and the plaintiff has not made any efforts to recover possession, has not paid taxes and that the suit filed by the plaintiff cannot be 18 : 19 : decreed. It also dismissed the suit on the ground of limitation.
19. The Lower Appellate Court relied on Ex.D-3, the CTS extract, which clearly go to show that after the death of Kadayya in the year 1933, the name of Gurubasavva was mutated as his legal heir. Again entry at 02.10.1947 shows that oral partition in respect of other properties include this property, where the name of Gurubasavva was shown. Kadayya died in the year 1933. Gurubasavva died in the year 1965. Her name was entered as legal heir to Late Kadayya and even after the oral partition which took place subsequently, her name continued till 1981. It is only on 04.11.1981, the name of defendants No.1 was entered showing that he is the grand son of late Gurubasavva and legal heir. Then it took note of the fact that Gurubasavva executed the Gift Deeds dated 19.03.1964 in respect of CTS No.2889, 2891, 2892 and 19 : 20 : rights in CTS 2885A. The Lower Appellate Court noticed that the suit property was not the subject matter of the gift. Ex.D-3 cannot be construed as document relinquishing the right of the plaintiff in the suit property. Once the suit property stands in the name of Gurubasavva, after her death, it devolves on her adopted son. Therefore it held that the plaintiff has established his title to the suit property.
20. It is in light of these discussions by both the trial Court as well as the appellate Court, it is to be decided whether the plaintiff has proved his title to the suit property.
21. It is well settled that a mutation entry is not a document of title. The parties admit that this property is ancestral property and that there was a partition in the family. If the property in partition has fallen to the share of Kadayya, then the defendants have no title to the said property. If in the said partition, the 20 : 21 : property has fallen to the share of defendants, neither Kadayya, nor Gurubasavva nor the plaintiff has any title to the said property. Therefore the title is to be traced from the partition deed. The mutation entry in the name of Kadayya at an undisputed point of time is not sufficient to hold that the same is the document of title, which confers title on Kadayya and on his death, his wife Gurubasavva succeeded to the said property and on her death, plaintiff has inherited the said property. Unfortunately the said partition deed is not produced before this Court. On the contrary, reliance is placed by the plaintiff on Ex.P-1 to P-2, the judgment and decree in O.S.No.51/88. As could be gathered from the said judgment, though Gurubasavva executed a registered Gift Deed in favour of the plaintiff gifting several properties, the suit property was not the subject matter of the Gift Deed, which clearly shows that Gurubasavva has not gifted the suit property in favour of the plaintiff. If Gugubasavva is the owner of the suit property, on her 21 : 22 : death, it devolves on the plaintiff. Unless it is shown that Gurubasavva is the owner of the property or Kadayya is the owner of the property, the plaintiff has no right in the property. Admittedly, the defendants are in possession of the property. It is in this regard, it is necessary to know what happened to the judgment and decree in O.S.No.51/88 that was the subject matter of appeal before this Court in RFA 944/2000. The said appeal was decided on 02.08.2012 on merits. When the entire title of the plaintiff is based on the judgment and decree in O.S.No.51/88, when the said judgment and decree is set aside by this Court in that appeal, this Court has to necessarily look into the judgment and decree in the said appeal to decide the rights of the parties, as there is no other material placed by the plaintiff to prove the title to the suit property. In the said appeal, the relationship between the parties is clearly set out. The points that arose for consideration in the said appeal are as under:
22 : 23 :
(a) Who are the members who constitute a joint family?
(b) Which are the properties, which belong to the said joint family?
(c) What are the properties which are the subject matter of partition earlier and what are the properties which are not partitioned till today?
(d) Whether the plaintiff have any right in any of these properties which are the subject matter of the suit?
22. In order to decide those points, reliance was placed on Ex.D-55, the registered partition deed dated 20.09.1888, which came into existence 100 years back. Thereafter, it is held as under:
"From the evidence on record it is clear that one Gurusiddayya is the propositus. He 23 : 24 : had two sons by name Channabasayya and Kadayya. Kadayya had no issues. Channabasayya had four children, i.e., Gurusiddayya, Veerabhadrayya, Kadayya and Lingayya. The controversy is whether Lingayya continued to be the member of the joint family of Channabasayya's branch. The material on record discloses that this Lingayya was given in adoption to the Kadayya as he had no issues and therefore he ceased to be the member of the joint family of Channabasayya. The material on record also discloses, after the death of Channabasayya his three sons effected a partition on 12.01.1876 by way of a Registered Partition Deed. Though the said document was not marked as an exhibit, now it is available on record, which is admitted in evidence. This document is admitted by defendants no. 12 in his evidence. It discloses that Lingayya has gone in adoption to Kadayya and thus the remaining three sons are effecting a partition. Therefore it presupposes Channabasayya and Kadayya during their lifetime had effected a partition of 24 : 25 : all the joint family properties and they were separated members of the joint family.
Because Kadayya had no issues, Channabasayya gave his son Lingayya in adoption to him. After Lingayya ceased to be the member of the family of Channabasayya and after the death of Channabasayya, it is only the remaining three sons who effected the said partition. The said partition deed also reveals, in the said partition Gurusiddayya took the property no 3236 and 3237 towards his share in the joint family properties and got himself separated from the joint family. However, the remaining two members, i.e., Veerabhadrayya and Kadayya, continued to be joint. The said document also makes it clear that when Gurusiddayya got two properties towards his share in 3236 and 3237, the remaining property 3234 and 3235 was held by Veerabhadrayya and Kadayya jointly. But at the same time the property described as Kadadevaramath bearing no. 3238 and Chinganur property was not the subject matter of partition and the said two items of 25 : 26 : the property were held jointly by all the three brothers. That, Kadadevaramath property bearing no. 3238 appears to be now renumbered as property bearing no. 2885A.
It is thereafter on 20.09.1888 Veerabhadrayya and Kadayya effected
partition by way of a Registered Partition Deed which is marked in the case as Ex.D.55. Under the partition property bearing no. 3235 fell to the share of Veerabhadrayya and property bearing no. 3234 fell to the share of Kadayya exclusively. However, the property described as Kadadevaramath bearing no. 3238 (new no. 2885A) and the property situated at Chinganur were not partitioned. Therefore it continued to be joint. In the said partition deed there is a specific recital that on 12.01.1986 under a Registered Partition deed, Gurusiddayya took his share in the joint family property. Thus there cannot be any dispute regarding facts which are set out in Ex.D.55."
"Somewhere in 1902, Veerabharaayya died leaving behind three sons by name 26 : 27 : Chandrashekarayya, Siddeshwarayya and Channabasayya. Channabasayya died unmarried. Siddeshwarayya was given in adoption to Gurusiddayya. Thus, Chandrashekarayya represented Veerabhadrayya's branch. On 03.11.1915, Gurusiddayya who had taken the aforesaid Siddeshwarayya as his adopted son, died leaving behind his adopted son Siddeshwarayya. The said Siddeshwarayya filed a suit against Kadayya in O.S.No.886/1927 claiming the properties which had fallen to the share of Gurusiddayya in the aforesaid partition. After contest, the suit came to be dismissed. He preferred an appeal. Appeal was allowed. In execution of the said decree, which is marked in the case as Ex.P-44, he has taken possession of the property which fell to the share of Gurusiddayya in the earlier partition."
"Siddeshwarayya, son of Gurusiddayya had three sons by name Veerabhadrayya, Gurusiddayya and 27 : 28 :
Kadasiddeshwara. Veerabhadrayya went in adoption to Chandrashekarayya son of Veerabharayya. He is defendants-1 in the present suit. Gurusiddayya son of Siddeshwarayya is defendants-2 in the suit. Kadasiddeshwara is defendants-3 in the suit. Kadayya's wife is Gurubasavva. Lingayya who went in adoption to Kadayya, had a son by name Basavannayya. That Basavannayya had a son by name Lingayya and a daughter by name Adivevva. This Adivevva was married to Madivalayya Keladimath, who is none other than the brother of Gurubasavva. This Adivevva and Madivalayya Keladimath had son by name Siddeshwarayya and a daughter by name Virupaxavaa. Son of Adivevva i.e., Siddeshwarayya was taken in adoption by Gurubasavva. He is defendants-12 in this suit. His wife Shakuntala is defendants-13.
Sons, Shivakumar, Rajeshwar and Gurubasayya are defendantss-14, 15 and
16."28 : 29 :
"Basavannayya son of Lingayya had a wife by name Shivubai. Shivubai is defendants-4. Defendantss-5, 6, 6, 8, 9, 10 and 11 are children of Shivubai."
"Kadayya, i.e., son of Channabasayya Gurusiddayya died on 21.06.1933. It is after his death, on 25.10.1936 Gurubasavva took the aforesaid Siddeshwarayya son of Adivevva as her adopted son. The said Gurubasavva had executed a registered gift deed in favour of defendan-12 gifting her properties bearing Municipal Nos.2889, 2891, 2892 and her undivided interest in 2885A."
"Towards the share of Gurusiddayya, Municipal Nos.3236 and 3237, towards the share of Veerabhadrayya Municipal No.3235, towards the share of Kadayya Municipal No.3234 has fallen exclusively. Therefore the question of effecting partition in this suit in respect of those properties is not permissible as they cease to be joint family properties.
Under the document dated 12.01.1876 property bearing Municipal No.3238 29 : 30 :
Kadadeveramath and Chindanur was not divided. Therefore the said property belongs to all the three brothers Gurusiddayya, Veerabharayya and Kadayya. In the partition dated 20.09.1888 as per Ex.D-55 also, the said property was not partitioned. Even after the said partition, the said property continued to be joint."
" The suit of the plaintiff is partly decreed.
(a) The plaintiff and his branch is entitled to 1/3rd share in property bearing Municipal No.3238 only.
(b) The question whether Municipal No.3238 encompasses only Municipal
No.2885A or it also encompasses Municipal No.2891, 2892, 2893 is to be gone into in the Final Decree Proceedings.
30 : 31 :
(c) For the purpose of avoiding any further confusion, it is made clear that:-
i) Municipal No.3236 and Municipal No.3237 exclusively belongs to Gurusiddayya and consequent CTS numbers.
ii) Property bearing Municipal No.3235 exclusively belongs to Veerabhadrayya's branch and consequent CTS number 2890.
iii) Property bearing Municipal No.3234 exclusively belongs to Kadayya and the consequent CTS No.2889 belongs exclusively to defendant No.12 and his successors in title.
(d) Lingayya son of Channabasayya is given in adoption to Kadayya the brother of Channabasayya and therefore he is not the 31 : 32 : member of the joint family. Therefore he has no right in any of these properties.
Ordered accordingly."
23. Ultimately in the said judgment it was held that property bearing Municipal No.3235 exclusively belongs to Veerabhadrayya's branchs and the consequent corresponding CTS number 2890. Property bearing Municipal Nos.3234 exclusively belongs to Kadayya and the consequent corresponding CTS number 2889. It is the specific case of the plaintiff in the said suit that they are in possession of the property bearing Municipal No.3235 exclusively, from the date of the partition deed and the property bearing Municipal No.3234 exclusively belongs to Kadayya and he is in possession.
24. In paragraph 11 of the cross-examination, the plaintiff in the suit has admitted that property bearing CTS No.2889, 2890, 2891, 2892, 2885A and 32 : 33 : 3885A belongs to Gurubasavva. CTS No.2889 has fallen to the share of Gurubasavva. The aforesaid properties fell to the share of Kadayya in the partition. On his death, it devolved on Gurubasavva. He is unable to say which property has fallen to the share of Veerabhadrayya. He admits that he has not produced the document to show the property which has fallen to the share of Kadayya and Veerabharayya at partition. He is unable to say from what year the defendants are in possession of the suit property. He has deposed that since 20 years, he has been asking the defendants to vacate the premises. They promised, but they did not vacate.
25. From the aforesaid evidence it is clear that under Ex.D-55, the property bearing Municipal No.3234 fell to the share of Kadayya and property bearing Municipal No.3235 fell to the share of Chandrashekarayya. From the date of partition which 33 : 34 : took place 100 years back under the registered document, the parties are enjoying their respective properties. It is only in the year 1995, the present suit is filed. If the plaintiff wants to contend that the property which fell to his share in the said partition namely Municipal No.3234 is given the CTS No.2890, which is the suit property, the burden is on him to prove the said fact. He has not produced any material on record to show the property bearing Municipal No.3234 corresponds to the property bearing CTS No.2894. In the absence of the said evidence being brought on record, the plaintiff's claim that he got the suit property under the partition deed is not established. Admittedly, the defendants are in possession of the suit property even during the life time of Gurubasavva. Gurubasavva died in the year 1965. The suit is filed in the year 1995. According to the plaintiff, he has been requesting the defendants to vacate the premises for more than 20 years. He has not 34 : 35 : vacated. The suit came to be filed only after the defendants filed a suit as aforesaid.
26. From the judgment in R.F.A No. 944/2000 it is clear that the property bearing Municipal No.3235, which fell to the share of defendants' branch is given CTS No.2890 and they are in possession of the said property from the date of partition. This probablizes the fact that when Gurubasavva executed a gift deed in favour of the plaintiff, rightly she did not include this property as it did not belong to her and as it was in the possession of the defendants. Under these circumstances, the finding recorded by the Lower Appellate Court that the plaintiff has established his title to the suit property having inherited the same from Gurubasavva and the said property belongs to Gurubasavva and earlier to that, to Kadayya is based on surmises and is not supported by any documentary evidence. In the light of the judgment of this Court in 35 : 36 : RFA 944/2000, Ex.P-1 and P-2 have to be read along with the said judgment. Ex.P-3 is not the document of title. Under these circumstances, justifiable conclusion which can be arrived at is, plaintiff has not proved his title to the said property by any acceptable evidence on record.
27. Once the plaintiff has not proved his title and when the defendants have established that they are in possession from the time immemorial, at any rate from the date of partition which took place more than 100 years back, which is evidenced by a registered document, it cannot be said that they are in permissive possession on the licence granted to them by Gurubasavva and thereafter by the plaintiff. The plea of permissive possession also is not supported by any legal evidence on record. Unless it is demonstrated that the plaintiff has title to the property, plaintiff is entitled to the possession of the property and defendants are in 36 : 37 : unauthorised possession of the property, the question of payment of mesne profits would not arise. Therefore the finding recorded by the trial Court that the plaintiff has established the plea of permissive possession and defendants have to pay mesne profits at the rate of Rs.100-00 prior to the suit and subsequent to the suit is unsustainable and accordingly the said finding is hereby set aside.
28. In so far as ground of limitation is concerned, when the plaintiff has failed to prove his title to the property, his right to recover possession does not exist and therefore the question of limitation goes to background.
29. In that view of the matter, the judgment and decree of the Lower Appellate Court suffers from legal infirmities and it is liable to be set aside. Hence I pass the following order:
37 : 38 :
Appeal is allowed. The judgment and decree of the Lower Appellate Court is set aside.
The suit of the plaintiff for declaration, possession and mesne profits is dismissed.
Parties to bear their own costs.
SD/-
JUDGE Bvv/Ksp 38