Bangalore District Court
Bellur Usha Shivaprasad vs Smt. Sarasamba Anantha Swamy on 25 February, 2021
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OS.No.677/2010
IN THE COURT OF XVIII ADDL.CITY CIVIL JUDGE,
AT BENGALURU CITY [CCH.NO.10]
Dated this the 25th day of February 2021
PRESENT
Sri.SADANANDA NAGAPPA NAIK, B.A.L., LL.B.
XVIII Addl.City Civil Judge.
O.S.No.677/2010
Plaintiffs: 1.Bellur Usha Shivaprasad,
Aged about 49 years,
W/o Dr.B.G.Shivaprasad,
No.500A, 11th Cross, Shivaji Road,
N.R.Mohalla, Mysore - 570 007.
2. Vidya Prasad Bellur,
Aged about 20 years,
D/o Dr.B.G.Shivaprasad,
No.500A, 11th Cross, Shivaji Road,
N.R.Mohalla, Mysore - 570 007.
3. Dr.B.G.Shivaprasad,
Aged about 55 years,
Dr. Bellur Gopalaiah Shivaprasad,
43, Fox Lane Extension,
Painted Post, New York - 14870
United States of America
[By Sri O.R., Adv., for Plf No.1 & 2,
Sri.C.A.K., Adv., for Plf.No.3]
/VS/
Defendants: 1. Smt. Sarasamba Anantha Swamy,
W/o Ananthaswamy,
Aged about 60 years,
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R/at No.8 (old) New No.64,
Shankara Park, Shankara Mutt,
Shankarapuram,
Bengaluru - 04.
2. Vani N.Murthy,
Aged about 50 years,
W/ Nagaraj Murthy,
Dentist, Suryanivas,
Seon, Mumbai, Maharastra
[Sri.U.R., / R.C., Adv., for D1.
Sri.R.C.,Adv., for D2]
Date of institution of 20.12.2002
suit
Nature of the suit Awarding half share in the suit
(Suit on pronote, suit schedule property, vacant possession
for declaration and and damages
possession suit for
injunction, etc.
of the 29.08.2006
commencement of
recording of the
evidence.
Date on which the 25.02.2021
Judgment was
pronounced.
Year/s Month/s day/s
Total duration: 18 02 05
(SADANANDA NAGAPPA NAIK)
XVIII Addl.City Civil Judge, Bangalore.
J UD GME N T
The plaintiff has filed this suit for judgment and decree
to award the one half of the suit schedule property to the
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plaintiff in her own right and direct delivery of that half to the
first plaintiff; besides Rs.15,000/- per month from the
defendants who are in occupation thereof by way of damages
from the date of suit till delivery of vacant possession.
The remaining half of the suit schedule property shall be
one from over which the 2nd plaintiff is to recover her
education, marriage and settlement expense due from the 1 st
defendant and create a charge over that property.
An order to evict the defendants from the suit schedule
property and hand over vacant possession of the property to
Dr.Bellur G.Shiva Prasad.
Directing the defendants to pay damages for destruction
and restoration of the property,
To pass order that after the first and 3 rd plaintiffs pass
away, the children Vivekram Prasad Bellur and Vidya Prasad
Bellur) alone are entitled to their share in the suit property
and for costs.
2. Shorn of unnecessary details, the material facts
leading to plaintiff's case as contended in the plaint are as
follows:
It is the contention of the plaintiffs that, the plaintiff No.1
and plaintiff No.3 (Originally defendant No.1) were married on
12.5.1978, after their marriage they lived in Bangalore and
thereafter, shifted to USA, where they were employed. They
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have got two children by a son by name Vivek and daughter
Vidya-2nd plaintiff. The 1st plaintiff and 3rd plaintiff (Originally
1st defendant) obtained divorce by filing MC.NO.40/1994 on
the file of Civil Judge(Sr.Dn) Mysore as per order dtd.4.3.1996.
Thereafter, all the properties of 1 st plaintiff and 3rd plaintiff
(Originally 1st defendant) were divided equally. The 2 nd plaintiff
was residing with her mother and the son was residing with 3 rd
plaintiff (Originally 1st defendant) at USA. It is further
contended that as agreed and negotiated, 1st
defendant(transposed as 3rd plaintiff) was to be provided all
necessary financial support to the 2 nd plaintiff for her
settlement in life, besides her higher education and marriage.
The 2nd plaintiff is unqualified and till equipped to lead the life
independently as it stands on date. It is further contended that
the plaintiff is entitled for half share in the property held by
plaintiff No.3 in his name in India as the said properties were
acquired by him and plaintiff no.1 jointly. It is further
contended that the defendant No.2 & 3(rank changed as
defendant No.1 & 2), sisters of 3rd plaintiff are trying to
interfere and secure entire suit schedule property from the 3 rd
plaintiff. Therefore, they have been impleaded in the suit.
It is further contended that the 1st plaintiff and 3rd
plaintiff (Originally 1st defendant) both were residing
separately, united and remarried in the year 2013.
It is further contended that the plaintiff No.3 is the
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absolute owner of the suit schedule property and defendants
have no claim whatsoever on the same and it is the self
acquired property of 3rd plaintiff. The defendants are
contending that it is the ancestral property. It is further
contended that the 3rd plaintiff had only permitted them to
reside in the suit schedule property till the plaintiff No.1 & 3
were remarried. But the defendants continued to reside in the
suit schedule property.
It is further contended that the defendants are not paying
rents for their stay in the suit schedule property and never
vacated the same. The defendants are liable to pay rents at the
rate of Rs.25.000/- per month from 2012 till the date of
eviction and also plaintiff No.3 is entitled for recovery of money
for any damages that are caused by the defendants during
their stay. The defendants are in unauthorised occupation and
illegal possession of the 1st floor portion of the suit schedule
property.
It is further contended that inview of remarriage of
plaintiff No.1 & 3, the question of allotting or granting share in
the suit schedule property as prayed will not arise, and they
now entitled for the relief of eviction of defendants from the
suit schedule property. The 2 nd plaintiff is entitled for her claim
of maintenance, education, marriage and settlement in life.
Hence, prayed to decree the suit.
3. During the pendency of the suit, the 1 st defendant was
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transposed as plaintiff No.3. The rank of defendant No.2 & 3
are changed as defendant No.1 & 2 respectively. Since the 1 st
defendant was transposed as plaintiff No.3, his written
statement was not considered.
4. The defendant No.1 (original 2nd defendant) has filed
the written statement and the same was adopted by 3rd
defendant. The defendants 1 & 2 have also filed their
additional written statements.
In the written statement the 1st defendant (original 2nd
defendant) has denied the plaint averments, except the
relationship of the parties. It is further contended that their
father Gopalaiah was a tenant in respect of the suit schedule
property in the year 1956 and thereafter, later he acquired the
said property under a registered sale deed dtd.10.9.1975 from
Sri.Jagadguru of Sringeri. He obtained a permission from High
Court of Karnataka to acquire the property in the name of 3 rd
plaintiff. As on the date of purchase, the 3rd plaintiff was a
student, he had no source of income and he was under the
care and custody of his father. Entire sale consideration was
paid of their father Gopalaiah. He has also executed a
registered Will dtd.18.8.1989 stating that the property shall
devolve upon his wife and after her death, same shall devolve
upon the defendants 1 to 3 ie., plaintiff No.3 & defendants 1 &
2 equally and shall be entitled to enjoy 1/3rd share each by
their heirs and assigns subject to condition that each of them
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will have the right to one floor constructed at their cost over
the existing ground floor for their exclusive equipment. Later
said Gopalaiah had executed another registered
Comprehensive Will dtd. 19.12.1992, bequeathed the 1 st floor
portion ie., schedule A of suit schedule property infavour of 1 st
defendant and her husband Ananthaswamy absolutely,
Schedule B property to the 3rd plaintiff herein and Schedule C
property to the 2nd defendant. Inview of the latest Will, the
defendants are exercising their right, title and interest over the
same. The said Gopalaiah died on 11.5.2004. It is further
contended that 3rd plaintiff has instigated the plaintiff No.1 &
2 to file the present suit. As the 3 rd plaintiff regularly paying
Rs.11,000/- per month to the plaintiff No.1 & 2, there are
absolutely no disputes or occasion to file the present suit. The
3rd plaintiff being the father of the 2 nd plaintiff was fully aware
of the Will and enjoying the possession and hence, the
plaintiffs are estopped from challenging or questioning the
validity of the Will dtd.19.12.1992. Hence, the defendant No.1
has prayed to dismiss the suit and to pass judgment and
decree declaring the defendant No.1 & 2 are the absolute
owners in possession by virtue of registered Will
dtd.19.12.1992 executed by their father in respect of 1/3rd
share each in the suit schedule property.
5. The plaintiffs have filed objection to the counter
claim of the defendant No.1 & 2 and prayed to dismiss the
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same.
6. In the additional written statement the defendant
No.1 contended that the plaint averments does not disclose the
relationship of landlord and tenant. Therefore, the plaintiffs
are not entitled to seek the relief of eviction. It is further
contended that the 3rd plaintiff had at any time permitted the
1st defendant to construct the 1st floor. In September 1990, the
1st defendant constructed the first floor on the existing ground
floor of the suit schedule property. She and her husband
resided together openly and to the knowledge of the 3 rd
plaintiff. Thus, she has perfected her title over the first floor
by way of adverse possession. It is further contended that the
1st defendant is the absolute owner of the 1 st floor and plaintiffs
have no manner of right, title or interest over the same and
there is no cause of action over the 1 st floor. No prayer for
recovery of arrears of rent is sought. The court fee paid is
insufficient. The claim of the plaintiff No.1 & 2 and written
statement of 3rd plaintiff are adverse to each other. Plaintiff
No.1 & 2 have no right to seek any relief against the defendant
No.1. On the above grounds, prayed to dismiss the suit.
7. In the additional written statement the 2 nd defendant
has contended that her father Gopalaiah had made a Will
dtd.18.8.1989 which was accepted by the 3 rd plaintiff and
same was acted upon. Now the 3 rd plaintiff is estopped from
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contending that he is the absolute owner of the entire suit
schedule property and defendants 1 & 2 do not have a 1/3rd
share each in the suit schedule property. The facts of this
case, the provision of the Benami Transaction (Prohibition) Act,
1986 are inapplicable. On the above grounds, prayed for
dismissal of the suit.
8. On the basis of the above pleadings, the predecessor in
office has framed the following issues :
1. Does the plaintiffs prove that, plaintiff No.3 is the
absolute owner of the suit schedule property?
2. Does the plaintiffs prove that possession of the
defendants in portion of the suit schedule
property is a permissive possession?
3. Does the plaintiffs prove that they are entitled for
possession of the suit property possessed by
defendants?
4. Does the plaintiffs prove that, the plaintiff No.1 &
2 are entitled for the income of portion of suit
schedule property towards their maintenance
charges and educational charges of plaintiff No.2
as contended in the plaint?
5. Does the plaintiffs prove that they are entitled for
damages from the defendants towards the plaint
schedule property?
6. Does the defendants prove that the entire plaint
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schedule property was the absolute property of
father of plaintiff No.3 and defendant No.1
namely Gopalaiah?
7. Does the defendants prove that on 19.12.1992
Gopalaiah has bequeathed the entire plaint
schedule property in favour of plaintiff No.3 and
defendants describing the same as A, B & C and
that Will Deed is his last Will Deed?
8. Does the defendants prove that the plaintiff No.3
and defendants have acted as per the Will deed
dtd.19.12.1992 and each one of them are the
absolute owner of 1/3rd share in the suit
schedule property?
9. What order or decree?
ADDL.ISSUES FRAMED ON 9.10.2020.
1. Whether plaintiffs prove that the defendants are
in unauthorised occupation and illegal
st
possession of the 1 floor of the suit schedule
property?
2. Whether the plaintiffs prove that defendants are
liable to pay rent of Rs.20,000/- per month from
2012?
3. Whether the plaintiffs prove that they are
entitled for half share of the suit schedule
st
property to 1 plaintiff along with Rs.15,000/-per
month from defendants?
4. Whether the plaintiffs are entitled for the relief to
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hold and create charge over the remaining half
share of the suit schedule property for the
purpose of 2nd plaintiff to recover her education,
marriage and settlement expenses due from the
1st defendant?
5. Whether the plaintiffs are entitled for the relief of
declaration as prayed (f) of the plaint?
6. Whether the defendants prove that they are in
possession of 1st floor of the suit schedule
property right openly to the knowledge of the
plaintiffs, hostile to their interest thereon and
without any interruption and as such they have
perfected their title to the 1 st floor of the suit
schedule property by adverse possession?
7. Whether the suit of the plaintiffs is barred by law
of limitation with respect of 1 st floor of suit
schedule property and claim for arrears of rent?
8. Whether the court fee paid is insufficient?
9. Plaintiffs got examined plaintiff No.1 & 3 as PW1 & 3,
got marked the documents at Ex.P1 to P30 and closed their
side. The defendants got examined Defendant No.1
Sarasamba as DW1, and got marked document at Ex.D1 to
D9 and closed their side.
10. Heard the arguments on plaintiffs and defendants.
Perused the materials placed on record. The counsel for the 1 st
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defendant has relied on the decision reported in (1977) 2 SCC
49- Sita Ram Bhau Patil Vs. Ramachandra Nago Patil by Lrs.
11. My findings on the above issues are as under:
Issue No.1 : Does not arise for consideration
Issue No.2 : Does not arise for consideration
Issue No.3 : In the affirmative
Issue No.4 : Does not arise for consideration
Issue No.5 : Does not arise for consideration
Issue No.6 : Does not arise for consideration
Issue No.7 : Does not arise for consideration
Issue No.8 : Does not arise for consideration
Addl.Issue No.1: In the affirmative
Addl.Issue No.2: Does not arise for consideration
Addl.Issue No.3: Does not arise for consideration
Addl.Issue No.4: Does not arise for consideration
Addl.Issue No.5: Does not arise for consideration
Addl.Issue No.6: In the negative
Addl.Issue No.7: Does not arise for consideration
Addl.Issue No.8: Does not arise for consideration
Issue No.9 : As per final order,
For the following:
REA S ON S
12. The counsel for the plaintiff No.3 filed a memo not
pressing the reliefs as prayed in the plaint except the relief of
eviction. Inview of the said memo, issue No.1 to 8, Additional
Issue Nos.2 to 5, 7 & 8 does not arise for consideration. The
only issue that arise for consideration is Addl.Issue No.1 & 6
framed on 9.10.2020.
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13. Addl. Issue Nos.1 & 6:- As these issues are
interlinked with each other, they are taken up together for
consideration.
14. It is the contention of the plaintiff No.3(original
defendant no.1) that he is the absolute owner of the suit
schedule property. As he was residing in USA, he had
requested his sister the defendant No.1 (original defendant
No.2) to come to the suit schedule property to take care of his
parents. During her stay in the suit schedule property
plaintiff No.3 had sent the money from USA for the
construction of 1st floor of the suit schedule property and the
defendant No.1 (original 2nd defendant) were permitted to
reside in the 1st floor property. It is contended that the 1 st
defendant's possession over the 1st floor of the suit schedule
property is only a permissive possession. She is not paying
any rent. Therefore, prayed to evict the defendants from the
1st floor of the suit schedule property.
15. On the other hand, the defendant No.1 & 2
contended in their written statement that they are having
1/3rd share each in the suit schedule property as per the Will
executed by their father. However, in the additional written
statement, they have contended that they are in adverse
possession of the 1st floor of the suit schedule property from
September 1990 and they have perfected their title. It is
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further contended that there is no relationship of landlord and
tenant between the plaintiff No.3 and defendants. The suit
was originally filed for partition. Hence, eviction of the
defendants is not maintainable. On these grounds prayed to
dismiss the suit.
16. The counsel for the plaintiff No.3 has argued that
earlier the suit was filed for partition. The court on the basis
of the Will ordered for 1/3rd shares in the property.
Thereafter appeal in RFA No.1522/2013 & RFA No.1795/2013
was filed before the Hon'ble High Court of Karnataka
challenging the judgment and decree. The Hon'ble High Court
of Karnataka set aside the judgment and decree and
remanded the matter for fresh trial observing the materials on
records shows that it is the absolute property of 1 st defendant
(plaintiff No.3). It is argued that the issues has been framed by
this court as to whether the plaintiff No.3 is the absolute
owner of he suit schedule property, the Hon'ble High Court of
Karnataka has clearly observed in its judgment by virtue of
the sale deed dtd. 10.9.1975, it shows that plaintiff
No.3(earlier 1st defendant) has purchased the suit schedule
property. It is argued that Ex.P1 sale deed shows that plaintiff
No.3(earlier 1st defendant) is the absolute owner of the suit
schedule property. The said document does not reveal whether
the consideration amount is paid by other defendants. It
shows that entire consideration amount was paid by the
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plaintiff No.3 only. It is also come in the records that, plaintiff
No.3 was getting scholarship as he was working abroad. By
his own income, he has purchased the property. It is argued
that as per Ex.P20 certified copy of the complaint by 1 st
defendant, it shows that 1st defendant has built the first floor
with the consent of the plaintiff No.3. 1 st defendant was in
permissive possession of the property till 2012. As per her
own complaint to the police, she has stated that she is in
permissive possession of the 1st floor of the suit schedule
property. It is argued that there was a Writ Petition filed in
No.25298/1982 by the father of the plaintiff No.3 wherein the
endorsement was challenged for non-registration of katha in
his name. Thereafter, the father of plaintiff No.3 has not
challenged the same nor filed a suit for declaration. Hence, the
claim of the father of the plaintiff that he was the absolute
owner of the suit schedule property holds no water. It is
further contended that in the alleged Ex.D1 Will, no witnesses
are examined by the defendants. The said Will has not been
proved by the defendants. It is argued that defendants are in
unauthorised occupation of the property. Therefore, the
plaintiff amended the plaint as to include the prayer of
eviction. Defendant No.1 is in permissive possession till 2012.
This court has also framed additional issues casting the
burden on the defendants that whether they are in adverse
possession of the first floor of the suit schedule property. The
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recitals in the complaint Ex.P20 which is filed by the 1 st
defendant shows that, she is in permissive possession of the
suit schedule property. Even if it is considered that she is in
adverse possession of the 1st floor of the suit schedule
property from 2012, their claim would be premature as the 12
years has not elapsed. It is argued that construction of the 1 st
floor of the suit schedule property is done by the plaintiff
No.3. Plaintiff No.3 had requested his sister 1 st defendant to
come to the suit schedule property to lookafter their parents
as such 1st defendant came to the suit schedule property and
she was taking care of their parents. As the plaintiff No.3 was
working in the United States, he used to send money to the
account of the 1st defendant. First Defendant has constructed
the 1st floor of the suit schedule property with the help of
money sent by him. Even in the cross examination of 1 st
defendant, she has admitted that she was having bank
account with State Bank of Mysore, Shankarpuram Branch.
Plaintiffs have also got marked Ex.P26 the bank receipts and
other exhibits for having sent the money for the purpose of
construction. It is argued that plaintiff No.3 used to send
money in dollars. It is argued that on the meticulous perusal
of Ex.P1 and P27 to 30, it shows that plaintiff No.3 is the
absolute owner of the suit schedule property. The defendant
No.1 & 2 are sailing in the same boat as such, 2 nd defendant
has adopted the written statement of 1st defendant.
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It is further argued that there is no inconsistency in the
pleading of the plaintiffs. Plaintiffs from the inception of filing
the suit has mentioned that plaintiff No.3 is the absolute
owner of the suit schedule property. 1 St plaintiff is the wife
and 2nd plaintiff is the daughter of plaintiff No.3. Moreover,
additional written statement dtd.28.9.2020 filed by the
defendant No.1, she has admitted that plaintiff No.3 is the
owner of the suit schedule property. It is argued that there is
no rule for eviction that there must be a relationship of
landlord and tenant. The 1st defendant has admitted that she
is in permissive possession of the suit schedule property.
Defendants cannot take up a plea that the plaintiffs ought to
have filed a declaration suit instead of seeking the relief of
eviction. Though defendants have taken the contention of
adverse possession, no counter claim has been filed by them.
It is undisputed fact that plaintiff No.3 is the owner of the suit
schedule property. In Ex.P20 complaint drafted by herself
shows that till 2012, she is in permissive possession of the
suit schedule property. It is argued that though defendants
have taken the contention of adverse possession from 1990,
there was no such plea in the earlier written statement. It is
contended that the defendants have withdrawn the earlier
written statement and filed a new written statement. The
ruling relied by the defendants are favouable to the plaintiff
himself. No adverse possession is proved by the defendants. It
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is argued that when there is conflict of oral and documentary
evidence, it is the documentary evidence as provided u/s.91 of
Indian Evidence Act would prevail. Ex.C1 is admitted by 1 st
defendant. Defendants have not provided any documents to
show that themselves have constructed the 1 st floor building.
Plaintiff No.3 in 1992 itself had sent 1000 dollars for the
purpose of construction. The said amount itself was big
amount at that point of time. On these grounds, prayed to
decree the suit and direct the defendants to deliver vacant
possession of the 1st floor of the suit schedule property.
Plaintiff No.1 & 2 have adopted the argument of counsel for
plaintiff No.3.
17. Percontra, the learned Counsel Sri.Sreevastsa
appearing on behalf of 1st defendant has argued that initially
the present suit was filed by wife and daughter of plaintiff
No.3 against the husband and present defendants, seeking
the relief of partition. Thereafter, the judgment and decree
passed by this court was challenged in RFA No.1522/2013 &
1795/2013. Then the matter was remanded. Though para 8(a)
to (e) has been amended, on perusal of the plaint, it discloses
that plaintiff No.1& 2 did not join for such prayer as they
were not signed the said amendment. Plaintiff No.3 has also
sought for ejectment of the defendants 1 & 2. It is argued that
1st defendant is in continuous possession of the first floor of
the suit schedule property. She has paid taxes in respect of
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the 1st floor of the suit schedule property. It is argued that as
plaintiff No.3 was earlier 1st defendant, the written statement
filed by him prior to transposing himself as plaintiff No.3 is
destructive to each other. It is the case of the misjoinder of
plaintiffs and he should have filed separate suit for eviction
instead of continuing in the present suit. Suit was initially
filed for partition. Now the plaintiffs are pressing for the relief
of ejectment. It is fundamental principle of law that in a suit
for ejectment, there must be landlord and tenant relationship.
There is no rent or agreement that has been pleaded in the
plaint. Even in the cross examination of PW3, he has admitted
that there is no lease agreement and there is no rent collected
in respect of 1st floor of the suit schedule property. The
plaintiff No.3 instead of filing the suit for declaration and
possession is seeking eviction of the defendants 1 & 2. Even if
it is considered that there was a lease agreement between the
parties, there is no notice sent u/s.106 of Transfer of Property
act for terminating the lease agreement. It is admitted by the
plaintiff No.3 that the defendants have occupied the first floor
of the suit schedule property since September 1990.
Therefore, defendants have perfected their title by way of
adverse possession. Moreover, the amendment has been
signed on 14.12.2020. Therefore, 1 st defendant is in
possession of the suit schedule property for more than 30
years from September 1990 till 14.12.2020. It is argued that
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plaintiffs would have filed the suit for declaration and
possession by September 2002 itself. As defendants are in
possession of the suit schedule property since September
1990 as admitted by the 3rd plaintiff himself, plaintiffs have
no right to evict the defendants from the 1 st floor of the suit
schedule property. It is argued that Ex.C1 was confronted to
1st defendant, same cannot be admitted in evidence. It is
argued that 1st defendant's complaint as per Ex.P20 it states
that she is in permissive possession of the property, it wold
come within the purview of Sec.145 of Indian Evidence Act
1872, it can be used only for contradiction. The counsel for
the defendants also relied on the decision reported in 1977(2)
SCC 49- Sita Ram Bhau Patil Vs. Ramachandra Nago
Patil(dead) by Lrs., and another and contended that the party
shall be provided an opportunity to explain on such
document. It is argued that in fact by that time of filing the
complaint itself, 1st defendant had perfected her title to the
first floor of the suit schedule property. On these grounds,
prayed to dismiss the suit.
18. On meticulous perusal of the case, it shows that
initially suit was filed by present plaintiff no.1 and 2 against
the plaintiff No.3 (defendant no.1 prior to transpose),
defendant no.1 (Defendant no.2 earlier), and Defendant
No.2(Defendant No.3 earlier) seeking half share in the property
and other reliefs contending that the plaintiff No.1 and
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Plaintiff No.3 (1st defendant earlier) were married on
12.5.1978, after their marriage they lived in Bangalore and
thereafter, shifted to USA, where they were employed. They
have got two children by a son by name Vivek and daughter
Vidya-2nd plaintiff. The 1st plaintiff and 1st defendant obtained
divorce by filing MC.NO.40/1994 on the file of Civil
Judge(Sr.Dn) Mysore as per order dtd.4.3.1996. Thereafter,
all the properties of 1st plaintiff and 1st defendant (transposed
as 3rd plaintiff) were divided equally. The 2 nd plaintiff was
residing with her mother and the son was residing with 1 st
defendant (transposed as 3rd plaintiff) at USA. Further it
shows that as agreed and negotiated, 1 st defendant(transposed
as 3rd plaintiff) was to be provided all necessary financial
support to the 2nd plaintiff for her settlement in life, besides
her higher education and marriage. The 2 nd plaintiff is
unqualified and till equipped to lead the life independently as
it stands on date. It is further contended that the plaintiff is
entitled for half share in the property held by plaintiff No.3 in
his name in India as the said properties were acquired him
and plaintiff no.1 jointly. It is further contended that the
defendant No.2 & 3(rank changed as defendant No.1 & 2),
sisters of 3rd plaintiff are trying to interfere and secure entire
suit schedule property from the 3rd plaintiff. Therefore, they
have been impleaded in the suit.
19. It is further contended that the 1 st plaintiff and 1st
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defendant (transposed as plaintiff No.3) both were residing
separately, united and remarried in the year 2013.
20. The 1st defendant was transposed as 3 rd plaintiff as
per order dated 9.1.2013.
After the full fledged trial, the court partly decreed the
suit granting partition. Plaintiff No.3 is entitled for 1/3rd share
and defendant No.1 & 2 each were granted 1/3rd share in the
suit schedule property and this court dismissed the claim of
the plaintiff regarding possession and damages and eviction as
sought. Aggrieved by the same, the plaintiffs preferred an an
appeal in RFA No.1522/2013, defendants in RFA
No.1995/2013, both the appeals were clubbed by the Hon'ble
High Court and the suit was remanded to the trial court for
disposal afresh by keeping in mind of the observation of the
Hon'ble High court.
21. The Hon'ble High Court of Karnataka in its decision
has observed as follows:
The relevant paras are extracted as below:
Para 28. These two (2) points are taken up
together for consideration as finding that may be
recorded on any one point may over-lap. The suit
schedule property originally belonged to Sringeri
Mutt and father of third plaintiff and defendants - 2
and 3 i.e., Late Sri. Gopalaiah was residing in the
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said property as a tenant under Sringeri Mutt and
paying rents to the Mutt. In the year 1975, a
registered sale deed came to be executed by Sringeri
Mutt in favour of third Plaintiff namely son of Late
Sri Gopalaiah conveying the suit schedule property
in favour of third plaintiff. It is also not in dispute
said late Sri Gopalaiah was a District and Sessions
Judge and had retired in the year 1966 on attaining
the age of superannuation. Post retirement, he got
enrolled as an advocate and continued his practice
in Law at Bangalore.
Para 29. Third plaintiff along with plaintiffs 1
and 2 have been contending that suit property is the
self acquired property of third plaintiff and
undisputedly sale-deed dt: 10-09-1975 Exhibit P-1
is executed by Sringeri Mutt in favour of third
Plaintiff. Whereas, second defendant i.e., elder sister
of third plaintiff has been contending that suit
schedule property was purchased by their father in
the name of third plaintiff and he had bequeathed
same in favour of defendants No.2 & 3 under a Will
dated 19-12-1992. It is in this background learned
trial judge had framed issues 1, 6 and 7. Issue Nos.
1 and 7 were answered in the negative namely, trial
Judge held that both plaintiffs and defendants-2
24
OS.No.677/2010
and 3 had failed to prove they are absolute owners
of suit schedule property or deceased Sri Gopalaiah
having bequeathed the suit schedule property in
their favour respectively. However, issue No.6 came
to be answered in the affirmative namely, it was held
that suit schedule property was the absolute
property of deceased Sri B Gopalaiah on the ground
that prior to registration of the sale deed - Ex.P-1 in
the name of third plaintiff, Sri Gopalaiah was a
lessee of the suit property under Sringeri Mutt and
same has been admitted by all the parties and as
such, it is Sri Gopalaiah who had purchased the
suit schedule property. It would be apt and
appropriate at this juncture itself to extract the
recitals of the sale-deed - Ex.P-1 which would have
bearing on our discussion. In Ex.P1 - sale-deed, it is
recited to the following effect:
"...by way of sale to and in favour of the purchaser
all the schedule property absolutely and by way of
sale and the purchaser who is already in possession
of the property as lessee under the vendor shall be
entitled to continue to be in possession and
enjoyment of the property as absolute owner thereof
from the date of this indenture."
Para 30. Recitals in the sale deed prevails over
any other plea contrary to it. The above extracted
25
OS.No.677/2010
recital of the sale deed reflects that purchaser is in
possession of the property sold and purchaser of
suit schedule property is third plaintiff. It is
nowhere indicated in the said sale deed that father
of the purchaser was in possession of the property
sold. It is no doubt true PW-2 (third Plaintiff) in his
cross-examination dated: 23-02- 2013 has admitted
that his father was a tenant under Sringeri Mutt.
However, at the same time the assertion of the third
plaintiff that he had paid the sale consideration for
purchase of suit schedule property could not have
been ignored by the trial court or lost sight of it as
has been done. In other words there was no
evidence much less overwhelming evidence available
before the trial court to arrive at a conclusion that
consideration for purchase of the suit schedule
property had either not flown from third plaintiff or
had flown from father i.e., late Sri Gopalaiah to the
vendor - Sringeri Mutt. In fact, trial judge has held
P.W.-2 (third plaintiff) has admitted that he was a
student at the time of registration of sale deed in the
year 1975 and as such, it has to be presumed that
he could not have paid the sale consideration
amount reflected in Ex.P-1. It would be appropriate
to extract the so called admission of PW-2 dated:23-
26
OS.No.677/2010
2-2013 to either accept the finding so recorded by
the trial judge or to reverse the said finding. The
relevant admission of PW-2 reads:
" Presently I am working xxxxxx around 1998. It is
true that, from 1956 till upto purchase of the suit
schedule property by me my father was a
tenant under Shringeri Shankar mutt. It is true
that, as my father was a tenant in the suit property
the Shringeri Mutt has offered to purchase the
same by my father. I did my Master degree in
Aeronautic Engineering . From 1968 to 1969 I was
getting scholarship of IISC and from 1969 to 1970 I
was getting scholarship of NAL fellowship. My IISC
scholarship was Rs.250/ per month and
scholarship NAL fellowship was Rs.300/- per
month. I have not produced any documents before
the court in that regard, as it is not necessary. I
joined my service after my Master's degree in 1970.
I have not produced xxxxxxx in my name."
Para 31. A plain reading of the above
statement of PW-2 would indicate two facts: (1)
undisputedly PW2 was getting scholarship of from
1968 on wards, and (2) PW-2 had joined service in
the year 1970 itself i.e., five (5) years prior to sale
deed - Ex.P-1 and drawing good salary. Thus, it
cannot be said that PW-2 was without any income.
In fact, consideration that has flown from
purchaser to the vendor under Ex.P-1 is
Rs.25,000/-, though sale consideration agreed to be
paid is Rs.59,905. In other words entire
27
OS.No.677/2010
consideration amount as agreed has not flown from
purchaser to vendor. However, the moot question
would be whether, PW-2 had sufficient funds to the
tune of Rs.25,000/- paid to the vendor by third
plaintiff as on the date of registration of sale deed
Ex.P-1. This, factual aspect has not at all
received the attention of the learned trial Judge. In
fact, available evidence is silent. Yet, another aspect
which seems to have not been answered by the
learned trial judge, relates to the proved income of
the father Sri.Gopalaiah. Learned trial judge has
proceeded to hold that, father Sri B Gopalaiah,
being a retired District Judge and a practicing
Advocate till 1988 must have possessed sufficient
income to purchase suit schedule property in the
name of third plaintiff. It may be true he had
sufficient income. However, that by itself would not
be sufficient to hold that consideration amount as
reflected in Ex.P-1 had flown from Sri Gopalaiah to
the vendor. As noticed herein supra, recitals in the
sale deed prevails over any other plea vide Section
92 of Evidence Act.
Para 31. A plain reading of the above
statement of PW-2 would indicate two facts: (1)
28
OS.No.677/2010
undisputedly PW2 was getting scholarship of from
1968 on wards, and (2) PW-2 had joined service in
the year 1970 itself i.e., five (5) years prior to sale
deed - Ex.P-1 and drawing good salary. Thus, it
cannot be said that PW-2 was without any income.
In fact, consideration that has flown from
purchaser to the vendor under Ex.P-1 is
Rs.25,000/-, though sale consideration agreed to be
paid is Rs.59.905. In other words entire
consideration amount as agreed has not flown from
purchaser to vendor. However, the moot question
would be whether, PW-2 had sufficient funds to the
tune of Rs.25,000/- paid to the vendor by third
plaintiff as on the date of registration of sale deed
Ex.P-1. This, factual aspect has not at all
received the attention of the learned trial Judge. In
fact, available evidence is silent. Yet, another aspect
which seems to have not been answered by the
learned trial judge, relates to the proved income of
the father Sri.Gopalaiah. Learned trial judge has
proceeded to hold that, father Sri B Gopalaiah,
being a retired District Judge and a practicing
Advocate till 1988 must have possessed sufficient
income to purchase suit schedule property in the
name of third plaintiff. It may be true he had
29
OS.No.677/2010
sufficient income. However, that by itself would not
be sufficient to hold that consideration amount as
reflected in Ex.P-1 had flown from Sri Gopalaiah to
the vendor. As noticed herein supra, recitals in the
sale deed prevails over any other plea vide Section
92 of Evidence Act.
Para 32. Yet another material documentary
evidence available on record, which has been
ignored or not considered by the trial judge while
answering issues 1 and 6 is order dated 3-11-1992
passed in W.P.No:25298/1992, which writ petition
had been filed by late Sri.Gopalaiah seeking writ of
Mandamus to the then Bangalore Municipal
Corporation (now BBMP) to enter his name in the
Katha Register in respect of suit schedule property.
Writ court declined to grant the relief on the ground
that in the absence of any registered document or a
declaration of title by the competent civil court
regarding vesting title to the property, applicant's
name cannot be entered in the katha register. It
came to be held:
"From that is stated in the endorsement it is clear
that by mere consent the khatha cannot be be
transferred so as to confer ownership on applicant,
in the absence of any registered document or a
declaration of title by the competent Civil Court, I
do not find anything wrong in the said endorsement
30
OS.No.677/2010
as it reflects the correct position of law."
Para 33. Thus, ownership claim of late
Sri.Gopalaiah over the suit schedule property had
been declined by the writ Court during his life time
itself. He had not sought for any declaration of his
title to the suit property as its owner. On the other
hand, his claim came to be rejected and he was
fully aware as to what remedy he had to avail. Yet,
he did not initiate proceedings for declaration of his
title. In the absence of any declaration of title
sought for by Late Sri.Gopalaiah, trial court could
not have jumped to a conclusion that, he was the
absolute owner of the suit schedule property.
Hence, we are of the considered view that trial court
has committed a serious error in not considering
the available evidence in proper perspective or has
proceeded to ignore the available material evidence.
Para 36. In the instant case, trial Court has not
considered the effect of original defendant No.1 being
transposed as plaintiff No.3 and its impact on plaintiffs-1
and 2 claim, particularly in the background of written
statement filed by the original first defendant,
whereunder he had sought for dismissal of the suit. Trial
Court neither framed any additional issues under the
changed circumstances nor has recorded any findings
31
OS.No.677/2010
with regard to factual aspects of the case pursuant to the
reconciliation of plaintiff No.3 with plaintiff No.1. Hence,
we are of the considered view that in the interest of
justice, matter deserves to be remitted back to the trial
Court for taking note of these developments subsequent
to the commencement of litigation for arriving at a
conclusion as to what would remain for being
adjudicated.
Para 38. That apart, the subsequent events that has
taken place during the pendency of the suit/appeal can
also be taken note of. In fact, the rights of parties would
get crystallized on the date the suit is instituted and same
set of facts will have to be considered. As already
observed herein above, the subsequent event which took
place during the pendency of the suit, namely first
defendant getting himself transposed as third plaintiff
and thereby altering his status and he (transposed third
plaintiff) not giving up his earlier pleadings namely, pleas
put forward in the written statement filed as first
defendant and its impact on the prayer sought for in the
suit ought to have been examined by the trial court.
These are the aspects, which ought to have been taken
note of by the trial while adjudicating the rights of the
parties, insofar as the suit schedule property is
32
OS.No.677/2010
concerned.
Para 45. In addition to the law enunciated by the
Hon'ble Supreme Court stated supra, we are of the
considered view that in the case on hand, trial Court has
failed to take into consideration the subsequent event of
transposition of third plaintiff, while deciding the suit and
same has resulted in deciding the appeal on merits also.
Hence, remand of the suit, on the limited question is to
be determined by the trial Court, is inevitable under the
peculiar circumstances which has unfolded as afore
stated and in spite of all efforts, it is not possible to
decide the disputed question one way or the other on the
basis of the available evidence. In this context, it is
noticed that non- framing of an issue and finding having
not been recorded by the trial court on the basis of
available evidence, if the judgment of the trial court is
allowed to stand, it would result in rights of the parties
being truncated and as such, it would warrant for
remanding the matter back to the trial court for
adjudication afresh. In the title suit, parties are aware of
their position in law, while making their pleadings before
the trial Court. In the instant case, the third plaintiff has
filed written statement before the order of transposition
as defendant No.1 and had adduced evidence before the
33
OS.No.677/2010
Court claiming the absolute right over the suit schedule
property in entirety, excluding other defendants, which
fact was brushed aside by the Trial Court while
adjudicating the rights of the parties. In that view of the
matter, remand necessitated or intended for fresh
consideration with reference to such ground and unless
properly analysed, possibility of brazen errors creeping in
cannot be ruled out.
Para 48. In that view of the matter, the judgment
and decree dated 31st July, 2013 passed in OS No.677 of
2010 by the VIII Additional City Civil Judge, Bangalore
deserves to be set aside and entire case deserves to be
remitted to the Trial Court for deciding the specific issue
on the effect of transposition of defendant No.1 as
plaintiff No.3 and the rights of the parties thereunder.
The Trial Court shall recast the issue as indicated above
and after giving additional opportunity to both the
parties to lead additional evidence on the issue involved,
decide the suit afresh in accordance with law on other
issues as well, since finding recorded on fresh issue
would have bearing on other issues as well. All the
observations made by this Court hereinabove being
confined to disposal of these appeals, shall not in any
way, influence the trial and decision making in the
subject suit except to the extent the trial Court having
34
OS.No.677/2010
been ordered to take note of certain facts.
With the above observations, the Hon'ble High Court of
Karnataka has remanded the matter for fresh consideration.
22. This court has followed the observations of Hon'ble
High Court of Karnataka with utmost reverence.
23. After the remand of the above aid suit, this court took
up the matter and issues are reframed P.W.3 and D.W.1 were
examined. Heard both sides. Prior to the amendment of the
plaint, the 1st plaintiff was examined as PW1 and she has
reiterated the plaint averments. Subsequent to the amendment
the plaintiff No.3 who has been examined as PW2 in his
evidence has deposed that he is the absolute owner of the suit
schedule property, he had permitted his sister to occupy the 1 st
floor of the property to lookafter their parents. In the cross
examination he has deposed that the amendment application
dtd.31.8.2020 is signed by him only and the plaintiff No.1 & 2
have not signed. He denied the suggestion that they have not
consented. He has volunteered that they have consented. He
has deposed that he has not filed any document to the effect
that they have consented to it. He has admitted that 1 st
defendant Smt.Sarasamba occupied the 1st floor in 1990. He
had not given any permission to 1 st defendant Smt.Sarasamba
to construct only 1st floor. He has stated that he is aware that
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OS.No.677/2010
1st defendant occupied the 1 st floor since 1990. He has
admitted that he has no lease deed and he has never received
any rent.
24. The 1st defendant Sarasamba has been examined as
DW1 and she had reiterated the written statement averments.
Further she has admitted in her written statement that she
had filed a complaint to the police station as per Ex.P20, she
has further admitted that as per the complaint, she is in
permissive possession in the first floor of the suit schedule
property.
25. In the present case, it is not in dispute that the suit
schedule property was originally belong to Sringeri Mutt and
Late Sri. Gopalaiah - father of third plaintiff and defendants - 2
and 3 was residing in the said property as a tenant under
Sringeri Mutt and paying rents to the Mutt. Thereafter, a
registered sale deed came to be executed by Sringeri Mutt in
favour of third Plaintiff.
26. Though the defendants have contended that the
property was purchased in the name of the 3 rd plaintiff by his
father, the material on records does not disclose that the
property is purchased from Sri. Gapalaiah in the name of 3 rd
Plaintiff. Though the 1st defendant ( originally 2nd defendant)
filed a written statement with the counterclaim dated
36
OS.No.677/2010
17.11.2012 seeking relief of passing a decree, contentions they
are in adverse possession, however in original written
statement, it is the defendants (originally defendant no.2 and
3) claimed that they are the absolute owners in possession and
enjoyment by virtue of registered will dated 19.12.1992. There
was no plea of adverse possession.
27.The 3rd plaintiff has also got amended the plaint as
per order dated 2.2.2013 to include the prayer of eviction of
the defendant from the suit schedule property and to pay for
damages for destruction and restoration of the property.
Thereafter, the Para 8(B) to (C) got included in the plaint by
way of amendment order dated 11.9.2020. Pursuant to the
amendment of the plaint, the defendant no.1 (originally
defendant no.2) has filed additional written statement and has
specifically pleaded in para 6 of the additional written
statement that the 1st defendant has has constructed the first
floor on the existing ground floor of the plaint schedule
property for which no manner of permission was taken from or
accorded by 3rd plaintiff. And the first defendant and her
husband have resided there ever since openly and to the
knowledge of the 3rd plaintiff and hostile to the title of the 3 rd
plaintiff. This defendant has perfected her title to the 1 st floor
by adverse possession. The written statement of the 1 st
defendant ( formerly 2nd defendant) dated 17.11.2012 and
additional written statement dated 28.9.2020 are contrary to
37
OS.No.677/2010
each other. If the defendant no.1 has taken contention in the
former written statement that by virtue of the registered will
she is having right over the property, in the additional written
statement, she has taken up the contention of the adverse
possession without seeking any amendment to the previous
written statement.
28. The plaintiff No.3 has filed the memo not pressing
the reliefs as prayed in the plaint except the relief of eviction.
Hence, the only issue that arise for consideration is for
ejectment.
29. With regard to adverse possession, it is settled
principle of law that in case a person has not perfected his title
by adverse possession before start of the proceedings, he
cannot perfect his title during the pendency of the proceedings.
Adverse possession of the person in possession must be
deemed to have been arrested by initiation of these
proceedings.
30. The Hon'ble Supreme Court in Babu Khan case
[(2001) 5 SCC 375 : AIR 2001 SC 1740] , SCC p. 384, para
12)ruled thus:
"12.... The legal position that emerges out of the
decisions extracted above is that once a suit for recovery of
38
OS.No.677/2010
possession against the defendant who is in adverse possession
is filed, the period of limitation for perfecting title by adverse
possession comes to a grinding halt.
The Hon'ble Apex Court has further held in the case of
Hemaji Waghaji Jat Vs. Bhikhabhai Khengarbhai Harijan
reported in (2009) 16 SCC 517.
Para 14. In Secy. of State for India In Council
v. Debendra Lal Khan reported in AIR 1934 PC 23
it was observed that the ordinary classical
requirement of adverse possession is that it should
be nec vi, nec clam, nec precario and the possession
required must be adequate in continuity, in
publicity and in extent to show that it is possession
adverse to the competitor.
In S.M. Karim v. Bibi Sakina reported in AIR 1964 SC
1254, the Hon'ble Apex Court observed as under:
"5. ... Adverse possession must be adequate in
continuity, in publicity and extent and a plea is
required at the least to show when possession
becomes adverse so that the starting point of
limitation against the party affected can be found.
There is no evidence here when possession became
adverse, if it at all did, and a mere suggestion in the
relief clause that there was an uninterrupted
possession for 'several 12 years' or that the plaintiff
had acquired 'an absolute title' was not enough to
raise such a plea. Long possession is not
necessarily adverse possession and the prayer
clause is not a substitute for a plea.
In D.N. Venkatarayappa v. State of Karnataka reported in
39
OS.No.677/2010
(1997) 7 SCC 567 the Hon'ble Apex Court observed as under:
"Therefore, in the absence of crucial pleadings,
which constitute adverse possession and evidence
to show that the petitioners have been in
continuous and uninterrupted possession of the
lands in question claiming right, title and interest
in the lands in question hostile to the right, title
and interest of the original grantees, the petitioners
cannot claim that they have perfected their title by
adverse possession...."
In Md. Mohammad Ali v. Jagadish Kalita reported in
(2004) 1 SCC 271 the Hon'ble Apex Court observed as under:
"21. For the purpose of proving adverse
possession/ouster, the defendant must also prove
animus possidendi. 22. ... We may further observe
that in a proper case the court may have to
construe the entire pleadings so as to come to a
conclusion as to whether the proper plea of adverse
possession has been raised in the written statement
or not which can also be gathered from the
cumulative effect of the averments made therein."
In Karnataka Board of Wakf v. Govt. of India reported in
(2004) 10 SCC 779 at para 11, Hon'ble Apex Court observed as
under:
"11. In the eye of the law, an owner would be
deemed to be in possession of a property so long as
there is no intrusion. Nonuse of the property by the
owner even for a long time won't affect his title. But
the position will be altered when another person
takes possession of the property and asserts a right
over it. Adverse possession is a hostile possession
by clearly asserting hostile title in denial of the title
40
OS.No.677/2010
of the true owner. It is a well-settled principle that a
party claiming adverse possession must prove that
his possession is 'nec vi, nec clam, nec precario',
that is, peaceful, open and continuous. The
possession must be adequate in continuity, in
publicity and in extent to show that their
possession is adverse to the true owner. It must
start with a wrongful disposition of the rightful
owner and be actual, visible, exclusive, hostile and
continued over the statutory period." The Court
further observed that: (SCC p. 785, para 11) "11. ...
Plea of adverse possession is not a pure question of
law but a blended one of fact and law. Therefore, a
person who claims adverse possession should
show: (a) on what date he came into possession, (b)
what was the nature of his possession, (c) whether
the factum of possession was known to the other
party, (d) how long his possession has continued,
and (e) his possession was open and undisturbed. A
person pleading adverse possession has no equities
in his favour. Since he is trying to defeat the rights
of the true owner, it is for him to clearly plead and
establish all facts necessary to establish his adverse
possession."
In Saroop Singh v. Banto reported in (2005) 8 SCC 330
the Hon'ble Apex Court observed as under:
"29. In terms of Article 65 the starting point of
limitation does not commence from the date when
the right of ownership arises to the plaintiff but
commences from the date the defendant's
possession becomes adverse.
30. 'Animus possidendi' is one of the
ingredients of adverse possession. Unless the
person possessing the land has a requisite animus
the period for prescription does not commence. As
41
OS.No.677/2010
in the instant case, the appellant categorically
states that his possession is not adverse as that of
true owner, the logical corollary is that he did not
have the requisite animus.
In M. Durai v. Muthu reported in (2007) 3 SCC 114. the
Hon'ble Apex Court observed as under:
"7. ... in terms of Articles 142 and 144 of the
old Limitation Act, the plaintiff was bound to prove
his title as also possession within twelve years
preceding the date of institution of the suit under
the Limitation Act, 1963, once the plaintiff proves
his title, the burden shifts to the defendant to
establish that he has perfected his title by adverse
possession
In T. Anjanappa Vs.. Somalingappa reported in (2006) 7
SCC 570. The Court observed that a person who bases his title
on adverse possession must show by clear and unequivocal
evidence that his title was hostile to the real owner and
amounted to denial of his title to the property claimed. The
Court further observed that:
"20. ... 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 be open 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."
42
OS.No.677/2010
In P.T. Munichikkanna Reddy Vs. Revamma reported in
(2007) 6 SCC 59 held thus:
Para 5. Adverse possession in one sense is
based on the theory or presumption that the owner
has abandoned the property to the adverse
possessor on the acquiescence of the owner to the
hostile acts and claims of the person in possession.
It follows that sound qualities of a typical adverse
possession lie in it being open, continuous and
hostile.
In Delhi Gate Services Pvt. Ltd. v. Caltex (India) Ltd., AIR
1962 P & H 370 and in Mulk Raj Khullar v. Anil Kapur & Ors,
CS (OS) 1855/2011,, High Court of Delhi held thus:
If X, son of Y, starts living in the house of his
father, that is, in the house of Y with the permission
of Y, and then later when Y requests X to vacate the
possession, it shall not lie in the mouth of X to claim
ownership in the property by reason of the fact that,
X is the son of Y and has been residing in the house
of Y in the capacity of the son of Y. It shall be open
to Y to bring an action by way of suit for mandatory
injunction against X to cause his vacation from the
subject property and at best the possession that X
enjoyed will be termed that of 'permissive occupier'
or 'gratuitous licensee'
This shows that the possession must be nec vi nec clam
nec precario i.e. In continuity, in publicity and in extent. This
shows that permissive possession is not hostile possession. So
also mere long possession even for 100 years is not adverse
possession.
43
OS.No.677/2010
31. In State Bank of Travancore v. A.K Panicker, The
Hon'ble Supreme Court has held that there must be open and
explicit disavowal and disclaimer brought to the knowledge of
the owner. Mere possession for however length of time does not
result in converting the permissive possession into adverse
possession, as has been ruled by the Supreme Court in Thakur
Kishan Singh (Dead) v. Arvind Kumar.. The
permissivepossessor has necessarily to prove some overt act on
his part indicating assertion of hostile title. It is well said that
permissive possession and hostile animus operate in
conceptually different fields, and the permissive possession
does not become adverse by a mere change in the mental
attitude of the person in possession and it is for such person to
prove as to from which date the permissive possession became
hostile.
In Maria Margarida Sequeria Fernandes & Ors., reported
in (2012) 5 SCC 370 the Hon'ble Supreme Court has held
that merely because the person is allowed to stay in the
premises gratuitously, even by long possession of years or
decades such person would not acquire any right, title or
interest to the said property. It is held that such person can
never acquire interest in the property irrespective of his long
possession and was to give possession forthwith on demand
by the owner of the suit property. It is held that the Courts are
44
OS.No.677/2010
not justified in protecting the possession of a caretaker,
servant or any person who
was allowed to live in the premises for some time either as a
friend, relative, caretaker or as a servant. Such persons holds
property of the principal only on behalf of the principal and
does not acquire any right, title or interest of any nature
whatsoever in the suit property.
32. On perusal of the decisions of Hon'ble Supreme Court
anc High Courts its shows that in order to establish the plea
of adverse possession must be nec vi nec clam nec precario
i.e. In continuity, in publicity and in extent. Mere long
possession even for 100 years is not adverse possession. The
permissive possession is not hostile possession. The moment
the suit is filed, the claim of adverse possession come to a halt.
There cannot be completion of adverse possession during the
pendency of the suit.
33. Applying the above said principles, in the present
case, in the present case, in view of the legal position that
such adverse possession does not continue to run after filing of
the suit, as soon as the plaintiff has filed a suit, the
defendant's adverse possession ceased to continue. The 1 st
defendant is bound by her written statement and cannot take
up a new plea of adverse possession without an amendment of
previous written statement. Therefore, it cannot be said that
45
OS.No.677/2010
the suit for eviction is time barred and 1 st defendant has
perfected her title.
34. It is settled principle of law that when the plaintiffs
abandon their claim and when the question need to be decided
among defendants, such defendant need to be transposed as
plaintiff. Once so transposed written statement and plaint are
read together. On perusal of the 3 rd plaintiff's written
statement prior to his transpose, he has specifically pleaded
that he is the absolute owner of the suit schedule property.
Thereafter, when he has sought for eviction against the
defendants, he was impleaded as 3rd plaintiff.
35. Under the aforesaid circumstances, in view of the
factual matrix of the case, this Court is conscious of the fact
that there is no pleading on behalf of the defendants with
regard to their adverse possession in the initial written
statement and the requirement of law to constitute the
adverse possession is not proved by the defendants. It is the
settled principle of law as enunciated by the Hon'ble Supreme
Court and High Courts that the moment the recovery of
possession/ eviction is sought, the claim of adverse possession
gets seized. It is also a settled principle of law by catena of
judgments that once the amendment is sought and permitted
it dates back to the date of filing the suit. Even when a plaint
is amended, the amendment relates back to the date of the suit
46
OS.No.677/2010
except in some cases, e.g. where the amendment adds new
parties or properties.
36. In the present case the amendments were made after
due permission of the Court and there is no observation to the
contrary while allowing amendment. The amendment is also
not challenged. Therefore, it relates back to the date of
institution of the suit
37. Therefore, in the present suit, for the purpose of
claiming the adverse possession, the date which need to be
considered is the filing of the suit by the plaintiffs on
20.12.2002. On perusal of the written statement
dtd.17.11.2012 of the 1st defendant (Originally 2nd defendant),
there is no plea of adverse possession. The 1 st defendant
sought only for the relief of declaration of 1/3 rd share by way of
counter claim. It is specifically admitted by the 1 st defendant in
her cross examination that she had filed a complaint as per
Ex.P20 before the Inspector of Police, Shankarapuram and she
has admitted that she is in permissive possession. The relevant
portion of the complaint dated 7.7.2012 is extracted as below:
"We are the residents pf the 1st floor in the
above address for the last 23 years after having
built it at our own cost with the permission of
B.G.Shivaprasad, my brother and my father
Gopaliah. Now, B.G. Shivaprasad has gone back on
his words and has filed an eviction suit on us at the
city civil court (Suit No.677/10). The case is
47
OS.No.677/2010
pending before the court."
38. However, after transposing of 1st defendant as
plaintiff No.3, present 1st defendant (originally 2nd defendant),
after observation by the Hon'ble High Court in RFA has taken
a contrary stand that she is in adverse possession of the 1 st
floor of the suit schedule property. Therefore, it is evident that
the plea of adverse possession by the defendants are after
thought ie., after the decision of the Hon'ble High Court as to
findings on the title of the property in favour of the 3 rd plaintiff.
Therefore, by claiming the adverse possession the defendants
have also conceded to the fact that the 3 rd plaintiff is the owner
of the suit schedule property.
39. Even if this court considers that after complaint dtd.
7.7.2012 by the 1st defendant (originally 2nd defendant ) the
possession of the 1st defendant has become adverse, the claim
of the adverse possession is still premature. Moreover, during
the pendency of this proceedings, they cannot perfect the title.
Though the 1st defendant was able to elicit from the mouth of
the 3rd plaintiff that Sarasamba (1st defendant) was in
possession of the 1st floor of the suit property, since September
1990, there is no records or oral evidence to show that there
was an intention to possess or from September 1990
possession has become adverse. Therefore, the contention of
the 1st defendant that she has perfected the title by way of
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OS.No.677/2010
adverse possession is not tenable and liable to be rejected.
40. In the circumstance of the case, having regard to the
relationship of the parties, it is evident that the 3 rd plaintiff had
asked the defendants to look after the parents as he was the
resident of the US and the defendant s are in the permissive
possession of the 1st floor. When they are in the permissive
possession, the suit for possession is not necessary, it is
sufficient if the plaintiff seek for suit of eviction or mandatory
injunction.
41. On perusal of the documents produced by the
plaintiffs it reveals that the defendants are in permissive
possession of the suit schedule property. Therefore, the 3 rd
plaintiff is entitled for relief of eviction against the defendants.
Hence, I hold Addl.Issue No.1 in affirmative and Addl.Issue
No.6 in the negative.
42. Issue No.3: Inview of answering issue Addl.Issue
No.1 in the affirmative and Addl.Issue No.6 in the negative,
plaintiffs are entitled for possession of the suit property
possessed by defendants. Hence, I answer the above issue in
the affirmative.
43. Issue No.9: In the result, I pass the following:
49
OS.No.677/2010
O RDE R
The suit of the plaintiffs is hereby decreed in
part.
The defendant No.1 & 2 are hereby direct the
quit and deliver vacant possession of the suit
schedule property infavour of the plaintiffs within
three months from the date of this order.
The counter claim sought by the defendant
No.1 & 2 is dismissed.
Inview of the relationship between the parties,
they are directed to bear their own costs.
Draw decree accordingly.
[Dictated to the Judgment Writer, computerised, and print out taken
by him, corrected and then pronounced by me, this day the 25 th
February 2021.
(SADANANDA NAGAPPA NAIK)
XVIII ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU
AN N E XU RE
1. No.of witnesses examined on behalf of plaintiff/s :
PW1 : Bellur Usha Shivaprasad
PW3 : .B.G.Shivaprasad
2. No.of documents marked on behalf of plaintiff/s :
Ex.P1 : CC of sale deed dtd.10.9.1975
Ex.P2 : CC of order sheet in OS.NO.9284/2005
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OS.No.677/2010
Ex.P3 : CC of plaint & verifying affidavit in OS.9284/05
Ex.P4 : CC of valuation slip
Ex.P5 : CC of order sheet in OS.NO.9284/2005
Ex.P6 : CC of plaint in OS.No.9283/2005
Ex.P7 : CC of order dtd.3.11.1992 in WP.No.25298/1982
Ex.P8, 8A : Copy & CC of the complaint dtd.3.8.2012
Ex.P9 : Copy of the police acknowledgement
Ex.P10,10A:Copy & CC for FIR in Cr.No.80/2012
Ex.P11 : Katha extract
Ex.P12 : CC of order sheet in CC.2437/2013
Ex.P13 : CC of complaint dtd.27.9.2012
Ex.P14 : CC of spot mahazar
Ex.P15 : CC of PF
Ex.P16 : CC of wound certificate
Ex.P17 : CC of charge sheet
Ex.P18 : CC of order sheet in CC.2433/2013
Ex.P19 : CC of FIR in Cr.No.59/2012
Ex.P20 : CC of complaint filed by Sarasamba
Ex.P21 : CC of spot mahazar
Ex.P22 : CC of charge sheet
Ex.P23 : Copy of letter dtd. 25.11.2011
Ex.P24 : Copy of Beneficiary approval form
Ex.P25 : Copy of email letter sent to SBI
Ex.P26 : Copy of extract of accounts issued by SBI
Ex.P27 : Katha certificate dtd.30.11.2020
Ex.P28 : Katha extract dtd.30.11.2020
Ex.P29 : Tax paid receipt
Ex.P30 : Encumbrance certificate in Form -16.
3. No. of witnesses examined on behalf of defendant/s :
DW1 : Sarasamba
4. No. of documents marked on behalf of defendant/s :
Ex.D1 : CC of Will dtd.18.8.1989)
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OS.No.677/2010
Ex.D2 : CC of Will dtd.19.12.1992
Ex.D3 : CC of Application filed by BBMP under RTI
Ex.D4 : Kandayam paid receipt
Ex.D5 : Letter written by BBMP
Ex.D6 : Attested copy of extract of register maintained
by Sringeri Shankarmutt
Ex.D7 : Death certificate of B.Gopalaiah
Ex.D8 : Water bills
Ex.D9 : Electricity Bills.
XVIII Addl. City Civil Judge
Bangalore City.
52
OS.No.677/2010
Judgment pronounced in the open court
vide separate judgment. The operative
portion of judgment reads thus:
ORDER
The suit of the plaintiffs is hereby decreed in part.
The defendant No.1 & 2 are hereby directed the quit and deliver vacant possession of 1st floor of the suit schedule property infavour of the plaintiffs within three months from the date of this order.
The counter claim sought by the defendant No.1 & 2 is dismissed.
Inview of the relationship between the parties, they are directed to bear their own costs.
Draw decree accordingly.
XVIII Addl. City Civil Judge Bangalore City.