Karnataka High Court
P Krishnaveni W/O Late Veeraswamy vs Sri Sampath Raj on 27 January, 2020
Equivalent citations: AIRONLINE 2020 KAR 602
Author: H.P.Sandesh
Bench: H.P.Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU R
DATED THIS THE 27TH DAY OF JANUARY, 2020
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
RFA.No.1757/2012(INJ)
BETWEEN:
1. P. KRISHNAVENI
W/O. LATE VEERASWAMY
AGED ABOUT 75 YEARS
OCC: HOUSE HOLD
2. SMT. CHANDRA DEVI
W/O. LATE V. RAMACHANDRAN
AGED ABOUT 64 YEARS
OCC: HOUSE HOLD
3. V.R. MANONARAYAN
S/O. LATE V. RAMACHANDRAN
AGED ABOUT 37 YEARS
OCC: PRIVATE SERVICE
ALL ARE RESIDENTS OF
OLD No.63, NEW No.10
1ST MAIN, BAZAR STREET
GOWTHAM PURAM
ULSOOR
BENGALURU-560 008. ... APPELLANTS
(BY SMT. L. MANJULA, ADV.)
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AND
1. SRI. SAMPATH RAJ
AGED ABOUT 59 YEARS
R/O. No.13-A, CHIKKABANAVARA
BENGALURU-90.
2. SRI. ASHOK RAJ
AGED ABOUT 57 YEARS
3. SRI. SRIJAY RAJ
AGED ABOUT 55 YEARS
4. SMT. CHANDRAKANTHI
W/O. MEGHARAJ
AGED ABOUT 65 YEARS
5. SURYAKANTHI
AGED ABOUT 63 YEARS
ALL ARE CHILDREN OF
LATE A.P. KODANDAPANI
R/O. No.11, SRI. ANDAL NIVAS
SANTHOSH REDDY LAYOUT
RAMURTHY NAGAR
BENGALURU-560 016.
6. V. SRINIVASAN
S/O. LATE VEERASWAMY
AGED ABOUT 75 YEARS.
7. SRI. GAJENDRAN V.S.
AGED ABOUT 43 YEARS
8. V.S. GOPINATH
AGED ABOUT 39 YEARS.
9. V.R. CHANDRASHEKAR
AGED ABOUT 49 YEARS
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10. V.R. SARASAVANI
AGED ABOUT 43 YEARS
11. V.R. SHAMALA
AGED ABOUT 42 YEARS
12. V.R. DEVENDRAN
AGED ABOUT 41 YEARS.
R7 AND R8 ARE CHILDREN OF
V. SRINIVASAN,
R9 TO R12 ARE CHILDREN OF
LATE V. RAMACHANDRAN
ALL ARE R/O. OLD No.63,
NEW No.10, 1ST MAIN ROAD
BAZAR STREET
GOWTHAM PURAM
ULSOOR
BENGALURU-5606 008. ... RESPONDENTS
(BY SRI. M.S. BHAGAWAT, ADV. FOR R1 TO R5
R6 TO R12 ARE SERVED AND UNREPRESENTED)
THIS RFA IS FILED UNDER SECTION 96 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 13.07.2012
PASSED IN O.S.NO.16572/2005 ON THE FILE OF THE XIII
ADDL. CITY CIVIL JUDGE, MAYO HALL UNIT, BENGALURU,
DISMISSING THE SUIT FOR PERMANENT INJUNCTION.
THIS RFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 6.1.2020, THIS DAY THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
This appeal is filed challenging the judgment and decree passed in O.S.No.16572/2005 dated 13.07.2012 on ` 4 the file of the XIII Additional City Civil Judge, Mayohall Unit, Bengaluru.
2. The parties are referred to as per their original rankings before the Court below to avoid confusion and for the convenience of the Court.
3. The appellants/plaintiffs have filed the suit seeking the relief of permanent injunction against the defendants from alienating the suit schedule property, from demolishing the suit schedule property and causing illegal dispossession of the plaintiffs from the suit schedule property bearing Old No.63, New No.10, I Main Road, Bazar Street, Gowthama Puram, Ulsoor, Bengaluru which is also morefully described in the schedule.
4. It is the case of the plaintiffs that plaintiff Nos.1 to 4 are residing on the western portion and plaintiff Nos.5 to 10 are residing on the eastern portion of the suit schedule property. The suit schedule property was owned by Smt. Andalammal and Sri A.P. Kodandapani, who were ` 5 brother and sister. One Sri V. Ramachandran, resided with his brother, who is plaintiff No.1. Plaintiff Nos.5 to 10 are the legal heirs of Sri V. Ramachandran. After the death of Sri V. Ramachandran on 07.09.1994, plaintiff Nos.5 to 10 continued to reside in the suit schedule property. Another property bearing No.5/11, 4th Cross, Artillery Main Road, Bengaluru was occupied by Smt. Bhagyawathi. Then, the said property was sold by the defendants in favour of M/s. Pearl Builders and Developers on 21.02.2005. But, Smt. Bhagyawathi has refused to handover the keys of the said property to the defendants. Hence, defendant No.1 has demolished the building illegally. Then Smt. Bhagyawathi has complained before the police. The defendants are claiming the suit schedule property belonging to their father and that they are the sole owners of the same. But, the plaintiffs are residing in the suit schedule property by paying tax to BBMP for the last 70 years. Now, the defendants are trying to illegally demolish the suit schedule property and also trying to dispossess the plaintiffs from the suit schedule property. On the basis ` 6 of the khatha standing in the name of Kodandapani, the defendants are attempting to transfer the suit schedule property to third parties. Hence, the plaintiffs have filed the suit for the relief of permanent injunction.
5. In pursuance of the suit, notices are issued to the defendants and they have appeared through their counsel and filed joint written statement. The defendants have denied the entire allegations made in the plaint. It is contended that the defendants are unaware about title of Sri V. Ramachandran and that plaintiff Nos.6 to 10 are his legal heirs. The case of the defendants is that, their father Sri A.P. Kodandapani has purchased the suit schedule property under the registered sale deed dated 18.10.1954. The parents of the defendants have expired, so the defendants being their children have inherited and succeeded to the suit schedule property. The defendants have also denied the payment of tax by the plaintiffs. It is contended that earlier defendants were in possession of the suit schedule property. But, by exercising force, the ` 7 plaintiffs have gained the possession. So, the defendants cannot protect their possession. The defendants are the lawful owners of the suit schedule property. Hence, they made counter claim that they are entitled for recovery of possession from the plaintiffs.
6. It is the further case of the defendants that permissive or wrongful possession of the plaintiffs for longer period does not entitle them to confirm possession over the suit schedule property. The plaintiffs are bound to deliver vacant possession of the suit schedule property to the defendants, who are original owners along with damages of Rs.1,000/- per day from the date of the suit. The plaintiffs are trespassers and are in wrongful possession of the suit schedule property. Hence, they are liable to pay damages. The plaintiffs have also filed rejoinder to the counter claim re-iterating the averments of the plaint.
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7. Having considered the pleadings of the plaintiffs as well as the defendants, the Court below has framed the following issues:
"1) Whether the plaintiffs prove their lawful possession and enjoyment of the suit schedule property, as on the date of the suit?
2) Whether the plaintiffs prove the alleged interference by the defendants?
3) Whether the defendants 1 to 5 are entitle for a decree of possession from the plaintiffs in respect of the suit schedule property?
4) Whether the defendants are entitle for damages of Rs.1000/- per day from the date of counter claim against plaintiffs?
5) Whether the counter-claim for possession without seeking declaration is not maintainable?
6) Whether the plaintiffs are entitle for the relief sought for?
7) Whether the defendants are entitle for the reliefs sought for?
8) What decree or order?"
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8. The plaintiffs, in order to prove their case, examined plaintiff No.10 as P.W.1 and got marked the documents Exs.P1 to P28. The defendant No.1 examined himself as D.W.1 and got marked the documents Exs.D1 to D6.
9. The Court below, after considering both oral and documentary evidence available on record, did not accept the case of the plaintiffs and answered issue Nos.1 and 2 as 'negative' and issue No.3 as 'affirmative' holding that the defendants are entitled for a decree of possession from the plaintiffs in respect of the suit schedule property.
Regarding damages is concerned, it is held that defendants are entitled for enquiry under Order 20, Rule 12 of Code of Civil Procedure for mesne profits. The defendants also claim possession by making a counter claim which has been answered as affirmative in terms of issue No.5 in coming to the conclusion that without seeking declaration, the defendants are entitled for possession. Hence, the present appeal is filed by the plaintiffs.
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10. The main grounds urged in this appeal by the plaintiffs is that the Court below has committed an error in answering issue Nos.1 and 2 as 'negative' and granting the relief of possession in favour of the defendants allowing the counter claim. The Court below has lost sight of the fact that the suit schedule property is the joint family property and without seeking declaration, mere relief by way of counter claim is not maintainable. Hence, on that ground itself, the judgment and decree of the Trial Court is liable to be set aside.
11. The Court below also committed an error in not appreciating the fact that the plaintiffs are staying in the suit schedule property since more than 70 years with their grand-mother Andalammal, who is the joint owner of the suit schedule property along with the father of the respondents, who is none other than brother of the their grand-mother. The Trial Court also committed an error in relying upon the judgment of the Apex Court, whereas the principles cited in the judgment are not applicable to the ` 11 facts of the case. The Trial Court has failed to consider the evidentiary value of Exs.P1 to P28 which establishes settled possession of the plaintiffs over the suit schedule property.
12. The Trial Court has committed an error in not appreciating the fact that Smt. Ponnammal is not the owner of the suit schedule property and it is the grand- mother of the plaintiffs along with her brother Sri A.P. Kodandapani are joint owners of suit schedule property along with other property situate at Artillery Road, Bengaluru. It is contended that in a settlement arrived in between the grand-mother of the plaintiffs and her brother Sri A.P. Kodandapani i.e., the father of the defendants, the grand-mother of the plaintiffs has sold Artillery Road property to the father of the defendants in the year 1934 retaining the suit schedule property for herself and the plaintiffs as legal heirs have succeeded to the suit schedule property after the death of Smt. Andalammal. Hence, the judgment and decree is liable to be set aside.
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13. The learned counsel appearing for the appellants/plaintiffs in her arguments contends that the property originally belongs to Smt. Andalammal, who is the sister of Sri A.P. Kodandapani, who is the father of the defendants. The property was purchased in the name of Sri A.P. Kodandapani in the year 1954. The plaintiff Nos.1 to 10 are the grand children of Smt. Andalammal. The plaintiffs have sought for the relief of bare injunction against the defendants. The Court below has committed an error in entertaining the counter claim of the defendants in a suit for bare injunction which is not maintainable. It is also contended that without seeking the relief of declaration, mere counter claim for possession is not maintainable. It is further contended that the plaintiffs are in possession of the suit schedule property for more than 70 years. The Court below has committed an error in considering the claim of the defendants for damages. It is further contended that counter claim was made only in the year 2009 and the Court below has failed ` 13 to take note of Article 65 of the Limitation Act which prescribes 12 years to seek the relief of possession and hence, the suit is barred by limitation.
14. The learned counsel for the appellants/plaintiffs in support of her contention relied upon the judgment of Gauhati High Court in the case of LUTFAR RAMMAN AND ORS -VS- ABDUL JALIL AND ORS. reported in AIR 2005 GAU 9. The counsel referring this judgment would contend that the counter claim is barred by limitation. So for as recovery of possession is concerned, limitation period is 12 years under Article 64 of the Limitation Act.
15. The learned counsel also relied upon the judgment of the Apex Court in Amit Anand Choudary's case, wherein it is held that if a rightful owner of an immovable property fails to take action to get back possession within the limitation period then his rights are lost and person in possession acquires an absolute title. It is further held that, as per the Limitation Act, 1963, the ` 14 statutory period of limitation that is allowed for possession of immovable property or any interest is 12 years in the case of private property and 30 years for public property, from the date the trespasser occupies the property. It is also held that the law provides shield to a person, who is in possession of the property beyond 12 years and that person can take action by filing a suit for restoration of possession in case of dispossession. The person in possession cannot be ousted by another person except by due procedure of law and once 12 years' period of adverse possession is over, even owner's right to eject him is lost and the possessory owner acquires right, title and interest possessed by the outgoing person/owner as the case may be against whom he has prescribed. It is further held that once the right, title or interest is acquired, it can be used as sword by the plaintiff as well as shied by the defendant within ken of Article 65 of the Act and any person, who has perfected title by way of adverse possession, can file a suit for restoration of possession in case of dispossession.
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16. Learned counsel appearing for the appellants also filed an application under Order 41 Rule 27 of Code of Civil Procedure to permit them to produce the certified copy of the Register of non testamentary document in respect of the schedule property contending that the same would be necessary to decide the issue with regard to evidencing the fact of long possession of the plaintiffs in suit schedule property. The respondents did not file any objections to this application, but orally opposed the same. The plaintiffs' counsel would contend that in order to decide the issue between the parties, additional evidence is necessary.
17. Learned counsel for the respondents/ defendants would contend that the plaintiffs are the strangers and they have trespassed the suit schedule property. The plaintiffs have not placed any material before the Court below to establish the relationship as contended by the plaintiffs. The plaintiffs also have contended that the suit schedule property is an ancestral ` 16 property and they are the legal heirs. In the suit, the plaintiffs have contended that they are in possession for more than 70 years. It is also contended that they have not sought for the relief of partition though they have contended that it is an ancestral property and they are the legal heirs. However, the suit is filed only for the relief of bare injunction. The plaintiffs have not contended that they are in adverse possession of the suit schedule property. Their claim is that they are the legal owners of the suit schedule property claiming their right through grandmother Smt. Andalammal.
18. Learned counsel would further contend that the Court below has rightly appreciated both oral and documentary evidence and dismissed the suit of the plaintiffs. In respect of the counter claim made by the defendants, the Court below, after considering both oral and documentary evidence, has rightly come to the conclusion that the defendants are entitle to recover the possession of the suit schedule property from the plaintiffs ` 17 and has rightly directed the plaintiffs to vacate and handover the possession of the suit schedule property to the defendants. Hence, the Court below has not committed any error in appreciating both oral and documentary evidence and therefore, there are no grounds to interfere with the findings of the Trial Court.
19. Learned counsel appearing for the defendants, in his arguments, has relied upon the judgment of the Hon'ble Apex Court reported in (2019) AIR (SC) 3827 in the case of RAVINDER KAUR GREWAL AND OTHERS VS. MANJIT KAUR AND OTHERS with regard to limitation since the plaintiffs have vehemently contended that the counter claim made by the defendants is barred by law of limitation. Referring to para No.57 of the judgment, he would contend that the adverse possession cannot be decreed on a title which is not pleaded. Animus possidendi under hostile colour of title is required. Trespasser's long possession is not synonym with adverse possession. Trespasser's possession is construed to be on ` 18 behalf of the owner, the casual user does not constitute adverse possession. The owner can take possession from a trespasser at any point in time. Possessor looks after the property, protects it and in case of agricultural property by and the large concept is that actual tiller should own the land who works by dint of his hard labour and makes the land cultivable. The legislature in various States confers rights based on possession.
20. Learned counsel appearing for the respondents/defendants also would contend that the Hon'ble Apex Court in the judgment reported in (2012) 5 SCC 370 in the case of MARIA MARGARIDA SEQUEIRA FERNANDES AND OTHERS VS. ERASMO JACK DE SEQUEIRA (DEAD) THROUGH LRS has held that:-
1. No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property.
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2. Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession. The caretaker or servant has to give possession forthwith on demand.
3. The Courts are 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.
4. The protection of the Court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or license agreement in his favour.
5. The caretaker or agent holds property of the principal only on behalf of the principal. He acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession.
` 20 These principles of law which were emerged in the case referred supra have been crystallized.
21. Learned counsel appearing for the respondents/defendants also relying upon the judgment reported in (2012) 6 SCC 430 in the case of A.SHANMUGAM VS. ARIYA KSHATRIYA RAJAKULA VAMSATHU MADALAYA NANDHAVANA PARIPALANAI SANGAM REPRESENTED BY ITS PRESIDENT AND OTHERS brought to my notice para Nos.43.4 and 43.6. In para 43.4, it has been held that once the Court discovers falsehood, concealment, distortion, obstruction or confusion in pleadings and documents, the Court should in addition to full restitution impose appropriate costs. The Court must ensure that there is no incentive for wrongdoer in the temple of justice. Truth is the foundation of justice and it has to be the common endeavour of all to uphold the truth and no one should be permitted to pollute the stream of justice.
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22. In para 43.6, it has been held that the watchman, caretaker or a servant employed to look after the property can never acquire interest in the property irrespective of his long possession. The watchman, caretaker or a servant is under an obligation to hand over the possession forthwith on demand. According to the principles of justice, equity and good conscience, the Courts are not justified in protecting the possession of a watchman, caretaker or servant who was only allowed to live into the premises to look after the same.
23. Learned counsel also relied upon the judgment reported in ILR 2017 KAR 4254 in the case of SHRI DURGAPPA, SINCE DEAD BY LRS. VS. NAGAMMA SINCE DEAD BY LRS. AND OTHERS. Referring to this judgment, he brought to the notice of this Court that in the said judgment also, this Court has made reference to the judgment of MARIA MARGARIDA SEQUERIA FERNANDES AND ORS. VS. ERASMO JACK DE SEQUERIA (DEAD) THROUGH LRS. and also brought para 24 of the judgment ` 22 to the notice of this Court, wherein it is held that the plaintiff need not always seek for declaration of his title, but he can plead the sources of his title and establish that he was in possession of the property on the basis of such ownership and subsequently, he was dispossessed by the defendant. In such an eventuality, he can recover the possession from the defendant without seeking the relief of declaration. Based on the principles laid down in the judgment, learned counsel would contend that the same is aptly applicable to the case on hand.
24. Learned counsel relying upon the judgment reported in (2016) 12 SCC 288 in the case of MUDDASANI VENKATA NARASAIAH (DEAD) THROUGH LEGAL REPRESENTATIVES VS.
MUDDASANI SAROJANA, brought to the notice of this Court para Nos.11, 12 and 14 of the judgment contending that unless there is serious cloud over the title of the plaintiff there is no need to file suit for declaration of title. The execution of the sale deed was not specifically denied ` 23 in the written statement. Once the execution of the sale deed was not disputed it was not necessary to examine the person to prove the same.
25. Learned counsel also relied upon the judgment reported in 2014 (2) KAR. L.J.265 (DB) in the case of JANATHA DAL PARTY, BANGALORE VS. THE INDIAN NATIONAL CONGRESS, NEW DELHI AND OTHERS, which is not applicable to the facts and circumstances of the case.
26. Learned counsel also relied upon the judgment of the Apex Court reported in (2019) 136 ALR 195 in the case of MALLIKARJUNAIAH VS. NANJAIAH AND OTHERS and brought to my notice the important point that mere continuous possession is not enough to sustain plea of adverse possession, as held by the Apex Court.
27. Learned counsel also relied upon the judgment reported in (2008) 4 SCC 594 in the case of ANATHULA SUDHAKAR VS. P.BUCHI REDDY (DEAD) BY LRS. AND ` 24 OTHERS. In this judgment, the Hon'ble Apex Court held that where the plaintiff's title is not disputed or under a cloud but he is out of possession, the only remedy available for him is to file a suit for possession with consequential injunction.
28. Learned counsel relying upon the judgment reported in (1999) 4 SCC 403 in the case of PRATAPRAI N.KOTHARI VS. JOHN BRAGANZA brought to my notice para 11 contending that the principle of possessory title or the principle of law that a person who has been in long continuous possession can protect the same by seeking an injunction against any person in the world other than the true owner. It is also well settled that even the owner of the property can get back his possession only by resorting to the due process of law.
29. Learned counsel referring to the above judgments would contend that the Court below, by rightly appreciating both the facts of the case and also the question of law, has rightly dismissed the suit filed by the ` 25 plaintiffs and has rightly considered the counter claim of the defendants. The law of limitation does not apply to the counter claim of the defendants, since the plaintiffs did not dispute the title of the defendants and also on the ground that the plaintiffs are in possession of the property for a longer period, the limitation does not accrues. Hence, prayed this Court to dismiss the appeal.
30. Learned counsel for the respondents/ defendants with regard to the application filed by the plaintiffs under Order 41 Rule 27 of Code of Civil Procedure, would contend that the said application cannot be allowed since the plaintiffs did not make any efforts to place the said document before the Trial Court. When the plaintiffs are not vigilant in producing the document, they cannot invoke provisions under Order 41 Rule 27 of Code of Civil Procedure. Hence, the said application has to be rejected.
31. Having heard the arguments of the appellants/ ` 26 plaintiffs' counsel and also respondents/defendants' counsel and so also keeping in view of the contentions raised by the parties, the points that arise for consideration of this Court are:-
1. Whether the plaintiffs have made out grounds to invoke Order 41 Rule 27 of Code of Civil Procedure and lead additional evidence as prayed for?
2. Whether the Court below has committed an error in dismissing the suit of the plaintiffs by not granting the relief of permanent injunction even though the plaintiffs were in exclusive possession of the suit schedule property?
3. Whether the Court below has committed an error in entertaining the counter claim of the defendants by granting possession in favour of the defendants?
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4. Whether the Court below has committed an error in not considering the limitation even though there was no specific pleading in the plaint as well as in the counter claim and whether it requires interference of this Court on the point of limitation?
5. What Order?
Point No.1:-
32. Before considering the matter on merits, it is necessary to consider the application filed under Order 41 Rule 27 of Code of Civil Procedure. The appellants/plaintiffs in this appeal has filed the said application under Order 41 Rule 27 of Code of Civil Procedure praying this Court to permit the plaintiffs to produce the certified copy of the Register of non testamentary document in respect of the schedule property which is purchased by the grand mother of the 3rd plaintiff, through whom the appellants/plaintiffs are claiming the rights over the suit schedule property dated 23.02.1934, which establishes the fact that the ` 28 father of the respondents/defendants alone is not the owner of the schedule property. In support of this application, an affidavit has been sworn to by the 3rd plaintiff stating that the Trial Court, without appreciating their contentions, was pleased to dismiss the suit and allowed the counter claim of the defendants. It is further sworn to that the defendants have taken stand in their counter claim that the property was purchased by their father A.P.Kodandapani and after his death, they being the class-I heirs succeeded to the schedule property and the plaintiffs are the trespassers on the schedule property.
33. It is further sworn to that the suit schedule property is not the exclusive property of the father of the defendants but the same was joint family property of their grandmother and father of the defendants along with other property situated at Artillery Road, Bengaluru. It is further sworn to that in the settlement arrived at between their grandmother and father of the defendants, their grandmother had sold the other property situated at ` 29 Artillery Road, Bengaluru in the year 1934, by a registered document retaining the schedule property for herself and after her death, the plaintiffs have succeeded to the schedule property as her legal heirs. It is further sworn to that the said document is handed over to their counsel and due to accidental injuries, he could not inform their counsel about the said document. Hence, he could not produce the same during the trial before the Court below.
34. It is further sworn to that when she was searching for the document, the 2nd plaintiff enquired her as to what she was searching for and she revealed that her counsel has instructed her to trace the title deeds of the schedule property. At that time, she informed that in the year 1934, her grandmother has executed the document in favour of the father of defendants thereby selling the other property which is situated at Artillery Road. Immediately on receiving the said information, she went to the Sub Registrar Office and applied for the certified copy of the Register and procured the same. Due to old age ailments ` 30 and ill health of her mother, she could not produce the said document before the Trial Court. Since the said document establishes the fact that the father of the defendants is not an owner of the schedule property and also in order to decide the issue involved between the parties, the said document is necessary. The certified copy of the document is also enclosed with its typed copy.
35. The respondents did not choose to file any objections. However, learned counsel in his arguments vehemently contended that the document which has been produced along with the application is not necessary to decide the issue involved between the parties since the same is not having any bearing on the issue. Hence, the same cannot be allowed.
36. Having considered the averments made in the affidavit and also the contentions of the parties, the plaintiffs are relying upon the document dated 23.2.1934 only to establish the fact that both the father of the defendants and the grandmother of the plaintiffs were ` 31 residing together in the very suit schedule property. The plaintiffs' counsel also would contend that since 1934, the plaintiffs are in possession of the suit schedule property. It is also important to note that the defendants have not filed any objections to the said application disputing the said document. The said document is a registered document and the same was registered on 23.02.1934. This document evidences with regard to the transaction that had taken place between Smt.Andalammal and Sri.Kodandapani. The defendants have disputed the relationship between the said Kodandapani and Smt.Andalammal. On perusal of the recitals of the document, nowhere it is mentioned with regard to relationship between the purchaser and the seller. It is also important to note that the residential address of Smt.Andalammal is mentioned as No.63, RHA Bazar line, Guntroop, CJM Station of Bengaluru and the address mentioned in respect of A.P.Kodandapani is at No.10, Persimers line, Guntroop, CJM Station of Bengaluru. The ` 32 suit schedule property which is mentioned in the suit is in respect of old No.63, new No.10, Bazar Street.
37. On perusal of the document, it is clear that the old house number is mentioned in respect of Smt.Andalammal is concerned and in respect of Sri.A.P.Kodandapani is concerned, the new house number is mentioned. However, the address mentioned is one and the same i.e., Guntroop, CJM Station of Bengaluru. Taking into consideration of the averments made in the document, it is clear that the sale deed was executed by Smt.Andalammal in favour of Sri.A.P.Kodandapani in respect of the property which is situated at Artillery Street.
Hence, this application deserves to be allowed only for a limited purpose to show the address of residential premises of both the parties, and also on what capacity they were staying in the said property and it requires further evidence in the matter to decide the issue with regard to date of possession since the defendants claim that they were in possession prior to their dispossession.
` 33 Accordingly, I.A.3/2012 is allowed for the purpose as stated above.
Point Nos.2 and 3:-
38. Before considering the oral and documentary evidence, it is appropriate to mention the averments of the plaint and written statement and then to consider the evidence available on record. The plaintiffs have contended in the suit that they are in possession of the suit schedule property since 70 years. It is also their contention that the Artillery Road property bearing No.11 was the joint family property of late Andalammal and her brother A.P.Kodandapani. The plaintiffs used to reside in the schedule property and the defendants and their parents and Smt.Bhagyawathi were residing in the Artillery Road.
It is contended that the plaintiffs are residing in the schedule property as a legal heirs of Smt.Andalammal. Now the defendants are claiming that the suit schedule property belongs to their father Sri.A.P.Kodandapani and that they are the absolute owners of the suit schedule ` 34 property and they are pressurizing and pressing the plaintiffs to vacate the same.
39. It is contended that the plaintiffs have been resided in the suit schedule property and they are paying the property tax to the BBMP. It is their contention that they are in joint possession of the schedule property since past 70 years. The document produced evidences the fact that they are in possession for more than 70 years and now the defendants are trying to illegally demolish the structure and also trying to illegally dispossess the plaintiffs from the property based on the katha standing in the name of Kodandapani. It is also contended that the suit schedule property is an ancestral property and the defendants are not only the legal heirs to the property but the plaintiffs are also the legal heirs and having the right and claim over the same. Mere the documents standing in the name of Kodandapani does not give any legal right to the defendants to become the absolute owners of the suit schedule property, especially when the plaintiffs are in ` 35 possession of the same and the property being the ancestral property.
40. In pursuance of the suit, the defendants in their written statement have contended that the plaintiffs are in possession of the suit schedule property as trespassers and they have no absolute right, title and interest. It is also their contention that the property bearing No.11, Artillery Road, Bengaluru belongs to these defendants is correct. It is contended that the plaintiffs are the trespassers by taking forceful possession of the property, belonging to these defendants and they cannot put any third party into possession. It is contended that A.P.Kodandapani purchased the plaint schedule property under the registered sale deed dated 18.10.1954 from Smt.Ponnamal and the defendants have succeeded to the said property. It is further contended that these plaintiffs are in possession of the property very recently by force and their possession is wrongful and illegal possession and hence, they cannot maintain a suit to protect their ` 36 possession. A person, who is in wrongful possession is not entitled to injunction against the true owner and the plaintiffs are only the trespassers and are not the lawful owners as contended in the plaint. The long time possession does not confer any title to the plaintiffs. The defendants also claimed the damages of Rs.1,000/- per day from the date of suit because the plaintiffs have no legal right to stay in the plaint schedule property and they being the strangers, trespassers are in wrongful and illegal possession of the plaint schedule property.
41. The defendants in the written statement have claimed the counter claim praying the Court to pass the judgment and decree directing the plaintiffs to deliver and handover the vacant physical possession of the plaint schedule property to the defendants and also direct the plaintiffs to pay a sum of Rs.1000/- per day as damages from the date of the counter claim. The plaintiffs have also filed objections to their counter claim denying the contentions of the defendants. It is contended by the ` 37 plaintiffs that they are in joint possession of the schedule property since more than 70 years and they have been paying tax from the year 1966 and now the defendants have managed to concoct the document. It is further contended that the defendants cannot stake the counter claim in the suit but they have to file a fresh suit for declaration under the proper cause of action. It is prayed by the plaintiffs that the counter claim be excluded and direct them to file a fresh suit against the plaintiffs. It is also contended that the defendants are also not entitled for any damages.
42. The plaintiffs, in order to substantiate their claim, the 10th plaintiff has been examined as P.W.1 and in the affidavit filed in lieu of chief evidence has reiterated the averments of plaint and got marked documents Ex.P1 to Ex.P28. P.W.1 was subjected to cross-examination. In the cross-examination, it is elicited that he has stated in para No.12 of his affidavit evidence that katha was standing in the name of Kodandapani. He also admits that ` 38 based on the sale deed dated 18.10.1954 katha was transferred to the name of Kodandapani in respect of suit schedule property. The schedule property measures 25 X 40 feet. He further admits that as per the sale deed, the schedule property is measuring 51 x 21 feet. He claims that there are two houses in the schedule property and he is not aware of the measurements of the each portions in the house. He admits that property bearing No.11, Artillery Main Road, 4th Cross, Bengaluru belongs to the defendants and the defendants are the legal heirs of Kodandapani. It is suggested that plaintiffs No.1 to 9 are not related to him nor they are related to each other and the same was denied. He does not know whether defendants have paid the tax for the years 2004 to 2009. It is suggested that Bhagyawathi is a stranger to him and the same was denied. He volunteers that she is the sister of his father and he has not produced any documents to show that Bhagyawathi is the sister of his father. He admits that Bhagyawathi stayed at No.11, Artillery Main Road, and she does not know whether she has vacated the said house by ` 39 receiving Rs.80,000/- from the Pearl Builders. It is elicited that his name does not finds place in Ex.P15 shown to him. He has not produced electoral card in respect of plaintiffs No.1 to 4 and himself. But he claims that he has produced Ex.P20 to show his possession in respect of suit schedule property. He admits that he has not produced any document to show that they are the owners of the suit schedule property. It is suggested that defendants never made any attempt to dispossess them and the same was denied. But he claims that they attempted to dispossess him before 2005.
43. The defendants have examined one witness as D.W.1 and D.W.1 in his affidavit filed in lieu of chief evidence has reiterated the averments of the written statement and also with regard to the counter claim. The defendants got marked documents Ex.D1 to Ex.D6. He was subjected to cross-examination. It is suggested that Smt.Andalammal is the sister of his father and the same was denied. It is suggested that plaintiffs are residing in ` 40 western and eastern portion of the suit schedule property and the same was denied. It is further suggested that the first plaintiff and her brother Ramachandra were born in the suit schedule property and the same was denied. It is suggested that property bearing No.5/11 Artillery Road was joint family property of his father and Andalammal and the same was denied. It is suggested that he along with his parents was residing at No.5/11 Artillery Road and the same was denied. It is suggested that V.Ramachandra and the plaintiffs No.6 to 10 are residing in the suit schedule property as they are the legal heirs of Smt.Andalammal and the same was denied.
44. In his further cross-examination, he admits that his father had two sisters and three brothers. The name of his first sister is Yeshodamma and he does not remember the name of another sister. It is suggested that the name of another sister of A.P.Kodandapani is Smt.Andalammal and the witness answers that he does not know about the same. The address is shown in Ex.D3 ` 41 and D4 is the address of death of his mother. He admits that his parents never resided in the suit schedule property. He also states that he has no documents of proof of residence of her parents in the suit schedule property. It is suggested that his father was kartha of joint family as such the property is purchased in his name and the same was denied. He claims that he has produced the document of General Power of Attorney and katha to prove that his parents resided in the schedule property. But he does not produce other documents. It is suggested that his parents are not residing in the suit schedule property and voters list, electricity bill, ration card and telephone bill are not standing in their name and the same was denied. It is suggested that V.Srinivas is residing in western portion and V.Ramachandra is residing in eastern portion of the suit schedule property and the same was denied. He admits that his father was employed in HAL. It is suggested that properties are purchased by joint family funds and the same was denied. He admits that his father died in the year 1987. It is suggested that ` 42 Smt.Bhagyawathi is the daughter Smt. Andalammal and the same was denied. He admits that he has stated in his chief evidence that Pearl builders paid Rs.80,000/- to Smt.Bhagyawathi to vacate. He claims that his father had purchased the property bearing No.11 Artillery Road, Bengaluru in the year 1934. He admits that they have sold the said property in favour of Pearl Builders. It is elicited that he left the schedule property in the year 2001 after locking it. He does not remember from what date he was residing in the schedule property. He claims that prior to 2001, his brothers and sisters i.e., remaining defendants were in possession of the schedule property. He has no documents to show their possession. Between 2001 to 2009 the schedule property was locked. He has not given any police complaint against the plaintiffs. It is suggested that since beginning children of Andalammal are in possession, therefore, no attempt was made to recover the possession and the same was denied. It is suggested that after the death of his father, he attempted to dispossess the plaintiffs and the same was denied. It is suggested ` 43 that at the desire of his father, they have not claimed any right in respect of the suit schedule property and the same was denied. He further states that he does not know what was the age of his father in the year 1934. It is suggested that plaintiffs have got share in the suit schedule property and the same was denied. It is suggested that Andalammal paid the sale consideration amount for purchase of suit schedule property and the same was denied.
45. Having considered both oral and documentary evidence available on record, there is no dispute with regard to the title of the suit schedule property. The plaintiffs also did not dispute the fact that the father of the defendants had purchased the property in terms of sale deed Ex.D1. It is the contention of the plaintiffs that the grandmother of the plaintiffs Smt.Andalammal had paid the sale consideration and the suit schedule property is the ancestral property of the plaintiffs. It is also important to note that the plaintiffs have filed the suit for bear injunction and though they claims the suit schedule ` 44 property is the joint and ancestral property, they did not seek any relief of the partition nor in exclusive independent right but their main claim is that since the said property is their ancestral property and they are in possession of the property for longer time, they are having right in respect of the same. However, the plaintiffs have not produced any documentary proof in order to substantiate the said fact. It is the contention of the plaintiffs that Smt.Andalammal, who is the grandmother of the plaintiffs is the sister of Kodandapani, who is the father of the defendants. In order to substantiate the said contention, no documentary proof has been placed before the Court. It is further pertinent to note that defendants have denied the relationship and they contended that the plaintiffs are strangers. When the defendants have denied the relationship, the plaintiffs ought to have placed the material before the Court to disprove the said fact.
46. No doubt, D.W.1, in the cross-examination, has intelligently denied their relationship. But in the cross-
` 45 examination, he admits that his father was having two sisters and he could able to mention only the name of one of the sisters as Yeshodamma. But he replies that he does not remember the name of another sister. It is also pertinent to note that a suggestion was made that another sister is Smt.Andalammal and D.W.1 says that he does not know about the same. D.W.1 did not deny the relationship specifically in the cross-examination. It is also pertinent to note that D.W.1 is in an ingenious method did not answer to the question regarding the name of the sister of the father of the defendants. Hence it is clear that the defendants intentionally not mentioned the name of the other sister of their father.
The other property which was situated at Artillery Road is also the property of the joint family and the grandmother has executed the sale deed. No doubt, the sale deed was executed in favour of the father of the defendants and the same has been registered. The said document is produced as an additional document before this Court along with I.A.No.3/2012. P.W.1 in the cross-
` 46 examination categorically admits that property No.11 Artillery Main Road, 4th cross, Bengaluru belongs to the defendants. When he categorically admits that the said property belongs to the father of the defendants, it is clear that the said property is exclusive property of the father of the defendants. But defendants fail to prove the fact with regard to Smt. Andalammal on what capacity she was staying in the very same property in which the father of the defendants was staying. The address mentioned in the sale deeds are one and the same and it has to be further clarified in the further evidence to be adduced in view of additional evidence.
47. It is pertinent to note that it is the case of the defendants that these plaintiffs have trespassed into the suit schedule property. On perusal of the written statement, nowhere it has been stated by the defendants as to on what date they have trespassed into the suit schedule property and also no complaint was given. However, it is their only contention that they have very ` 47 recently forcefully trespassed into the suit schedule property. It is pertinent to note that in the cross- examination of D.W.1, he claims that the suit schedule property was kept under lock from the year 2001 to 2009. In order to prove the fact that even prior to 2001, the defendants were in possession of the suit schedule property, no documentary evidence has been placed before the Court. But claims that brother and sisters were in occupation and for that also no document is produced. Hence, it is clear that the very claim of the defendants that the plaintiffs have trespassed into the suit schedule property is not supported by any material. However, the material placed before the Court by the plaintiffs establishes that they were in possession of the suit schedule property throughout. It is also important to note that the plaintiffs claim that they are having right in respect of the suit schedule property and they have been in possession for more than 70 years. The document now produced before the Court along with application filed under Order 41 Rule 27 of Code of Civil Procedure and ` 48 other documents establishes that prior to 2009 also the plaintiffs are in exclusive possession of the suit schedule property. The Court below, inspite of specific pleadings of the defendants that the plaintiffs have dispossessed them, has not framed any issues regarding their dispossession and the defendants also have to prove the same. In the cross-examination, it is stated that the defendants have kept the premises under lock from 2001 to 2009 and the plaintiffs have trespassed the property, but no specific date is mentioned with regard to dispossession, but the suit is filed in the year 2005 itself. Hence, a finding is required to be given by framing a relevant issue on dispossession and also evidence is to be adduced on that issue.
48. The plaintiffs' counsel in support of their contention mainly relied upon the judgment of the Hon'ble Apex Court in AMIT ANAND CHOUDARY'S case, wherein it is clear that the person in possession cannot be ousted by another person except with due process of law. The plaintiffs did not claim any adverse possession but claims ` 49 that they are having share in the suit schedule property since the property is the joint family property. The plaintiffs have not placed any material before the Court, except the pleadings in order to substantiate the said contention.
49. The other contention of the plaintiffs that defendants have not sought for the relief of declaration cannot be accepted for the reason that the plaintiffs did not dispute the sale deed of the father of the defendants. There is no cloud on the title of the defendants. P.W.1. himself admitted the sale deed executed in favour of the father of the defendants. Hence, the question of filing the suit for the relief of declaration does not arise.
50. Learned counsel appearing for the defendants in support of their contention have also relied upon the judgment of ANATHULA SUDHAKAR's case referred supra, wherein the Apex Court has categorically held that where the plaintiff's title is not disputed or under a cloud but he is out of possession, the only remedy available for ` 50 him is to file a suit for possession with consequential injunction. Hence, the judgment is aptly applicable to the case on hand and the same is in favour of defendants.
51. The Apex Court also in the judgment of PRATAPRAI N.KOTHARI's case referred supra held that the owner of the property can get back his possession only by resorting to the due process of law. In the case on hand also, the defendants who are the owners of the property, have claimed the counter claim for possession under due process of law. Hence, the judgment is aptly applicable to the case on hand.
52. Learned counsel appearing for the defendants also relied upon the judgment of the Apex Court in MALLIKARJUNAIAH's case referred supra, wherein it has been categorically held that mere continuous possession is not enough to sustain plea of adverse possession. As I have already pointed out, it is not the case of the plaintiffs that they have perfected the title by adverse possession ` 51 but their claim is that they are having right in respect of the suit schedule property.
53. Learned counsel appearing for the defendants also relied upon the judgment of the Apex Court in Civil Appeal No.190/2020 (Sri. Uttam Chand (D) Through LRS. -Vs- Nathu Ram (D) Through LRS. & Ors.) and in this judgment, the Apex Court at para 16 held that the plea of the defendants is one of continuous possession but there is no plea that such possession was hostile to the true owner of the suit property. The evidence of the defendants is that of continuous possession. Some of the receipts pertain to 1963 but possession since November, 1963 till the filing of the suit will not ripe into title as the defendants never admitted the plaintiff-appellant to be owner or that the land ever vested with the Managing Officer. It is further held that in view of the judgments referred in the matter, they did not find that the findings recorded by the High Court that the defendants have ` 52 perfected their title by adverse possession are not legally sustainable.
54. In the case on hand, it is to be noted that the plaintiffs also did not dispute that the property is standing in the name of the defendants and so also the sale deed was executed in the name of the father of the defendants. The plaintiffs also claim that they are in possession of the schedule property and they are also the owners of the property. The plaintiffs have not set out the defence that they have perfected the title by way of adverse possession. The principle laid down in the judgment referred supra is clear that longer possession of the property by the plaintiffs does not create any title and merely because they are in possession for longer period till filling of the suit, will not ripe into the title as contended by the plaintiffs.
55. In the referred judgment, the Apex Court has set aside the judgment of the High Court by coming to the conclusion that the High Court has committed an error in ` 53 holding that the defendants have perfected their title by adverse possession are not legally sustainable. I have already pointed out that it is not the case of the plaintiffs that they have perfected the title by way of adverse possession and hence, this judgment will not come to the aid of the defendants since question of adverse possession has not been raised in the present suit.
56. No doubt, it is the claim of the plaintiffs that they are in possession of the suit schedule property for a longer period and the same has been supported by the document placed before the Court. It is contended by D.W.1 that the plaintiffs have trespassed the property of the defendants when the same was kept under lock from 2001 to 2009. To evidence the said fact, the defendants have not placed any material before the Court and also have not specifically pleaded in the written statement the date of trespass by the plaintiffs into the property. As already held by this Court, no complaint has been filed in respect of the same. In order to substantiate the ` 54 contention that the plaintiffs have trespassed the property, no cogent material has been placed before the Court. Hence, it is clear that the defendants have allowed the plaintiffs to be in possession for a longer period and they also did not dispute the fact that the plaintiffs are in possession. It is their only contention that plaintiffs have recently trespassed the property and in possession but they have not substantiated the same by placing cogent material before the Court.
57. The Apex Court also in PRATAPRAI N.KOTHARI's case referred supra has held that person who has been in long continuous possession can only protect the same by seeking an injunction against any person in the world other than the true owner. It is also well settled that even the owner of the property can get back his possession only by resorting to the due process of law. Thus, the fact that the plaintiffs have been in possession for a longer period cannot create any right but they can only seek for the injunction. In the case on hand, ` 55 since the defendants have claimed the counter claim that they are the owners of the property, the possession has to be removed under due process of law only. The owner of the property has sought for the relief of possession through counter claim and hence, the said judgment is also aptly applicable to the case on hand.
58. The other contention of the appellants/plaintiffs' counsel in this appeal is that the Court below has awarded damages, which is erroneous. It is to be noted that the damages is claimed from the date of counter claim. The Court below did not award any damages, however, while answering issue No.4 has held that defendants have to be enquired under Order 20 Rule 12 of Code of Civil Procedure for mesne profits. Hence, the very contention of the appellants that damages has been awarded cannot be accepted as it has been held that it requires only an enquiry.
59. The Court below, having considered the materials available on record both oral and documentary ` 56 evidence, has come to the conclusion that the defendants being the owners are claiming possession based on the sale deed, which is marked as Ex.D1. It is also admitted by P.W.1 that the defendants are the owners of the suit schedule property. It is the only contention that the property is the joint family property and also the ancestral property of the plaintiffs and defendants. It has already been held by this Court that in order to substantiate the said contention, the plaintiffs have not placed any material either oral or documentary. It is also important to note that the defendants are seeking the relief of possession claiming that they are the owners and the plaintiffs have trespassed the property and the same has to be proved. No material is placed regarding their dispossession. While seeking the relief of possession, the defendants must prove the fact of dispossession. However, the same has not been done by placing any cogent evidence before the Court. The plea of dispossession and trespass has not been proved. On the other hand, the plaintiffs have proved the possession by placing material on record. Therefore, it ` 57 requires reconsideration by the Trial Court and the Trial Court has to frame an issue with regard to dispossession/trespass. Hence, point Nos.2 and 3 are answered accordingly.
Point Nos.4 & 5:-
60. It is to be noted that both the plaintiffs as well as defendants have not pleaded anything with regard to the limitation. However, while considering the matter, the Court below, even though did not raise the point, has considered the issue of limitation and has come to the conclusion that the same is not barred by law of limitation. On perusal of para No.11 of the judgment, it has been held that under Article 65 of the Limitation act, any length of possession will not confer title to the occupier, unless he proves adverse possession against the true owner.
61. The Court below has also referred the judgment reported in ILR 1998 KAR. 1422 (S.C.) (Indira Vs. Arumugam and Ors), the Hon'ble Apex Court in the said judgment has held that "Once title of the ` 58 plaintiff is established, unless the defendant proves adverse possession, plaintiff cannot be non-suited'. No doubt, even in the absence of pleadings under Section 3 of the Limitation Act, every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence.
Section 3 of the Limitation Act, 1963 reads as under:
"3. Bar of limitation.--(1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence. (2) For the purposes of this Act--
(a) a suit is instituted--
(i) in an ordinary case, when the plaint is presented to the proper officer;
(ii) in the case of a pauper, when his application for leave to sue as a pauper is made; and
(iii) in the case of a claim against a company which is being wound up by ` 59 the court, when the claimant first sends in his claim to the official liquidator;
(b) any claim by way of a set off or a counter claim, shall be treated as a separate suit and shall be deemed to have been instituted--
(i) in the case of a set off, on the same date as the suit in which the set off is pleaded;
(ii) in the case of a counter claim, on the date on which the counter claim is made in court;
(c) an application by notice of motion in a High Court is made when the application is presented to the proper officer of that court."
62. The Apex Court has also held in the judgment reported in (2011) 3 SCC 436 in the case of STATE OF ORISSA VS. MAMATA MOHANTY, that by virtue of Section 3 of the Act, it is obligatory on the part of the Court, to dismiss the suit or appeal if made after the prescribed period even though the limitation is not set up ` 60 as a defence, and there is no plea to raise the issue of limitation even at appellate stage because in some of the cases it may go to the root of the matter.
63. The Apex Court in the judgment of STATE OF GUJARAT VS. KOTHARI AND ASSOCIATES reported in (2016) 14 SCC 761 held that it is incumbent upon Trial Court to consider the issue of limitation on its own initiative even if that issue is not raised by the parties concerned. Where the issue of limitation was not raised during trial by appellants State and also the Trial Court failed to consider that issue on its own initiative, held, the said issue could be raised in appeal including any successive appeal.
64. Having considered the material on record with regard to issue of limitation is concerned, the Court below in para No.11 of the judgment has come to the conclusion that under Article 65 of the Limitation Act, any length of possession will not confer title to the occupier unless he proves adverse possession against the true owner. The ` 61 very findings of the Trial Court with regard to limitation is concerned, is erroneous. It is to be noted that no doubt, the plaintiffs have not pleaded anything about the counter claim made by the defendants as barred by limitation and so also the defendants in the written statement have not contended anything about the suit is barred by limitation. However, I have already pointed out that under Section 3 of the Limitation Act, it is the duty cast upon the Court below even in the absence of any pleadings with regard to limitation so as to raise the issue of limitation, which has not been done by the Trial Court. No issue has been framed by the Trial Court on the limitation, which involves mixed question of fact and law and hence, it requires evidence.
65. In the case on hand, the defendants have contended that they have been dispossessed/trespassed, when such a plea has been taken by the defendants, the law of limitation accrues. Hence, an independent issue is required to be framed with regard to the law of limitation ` 62 and also an issue with regard to dispossession and answer has to be given to the said issue by the Trial Court. As I have already pointed out that the limitation involves both question of fact and question of law, it requires to be reconsidered by the Trial Court by framing an issue with regard to the limitation as well as dispossession. However, this Court can also frame an issue at the appellate stage, but in view of the pleadings made by the defendants that they have been dispossessed/trespassed by the plaintiffs, it requires reconsideration by adducing additional evidence before the Court. In the case on hand also, already an application is filed under Order 41 Rule 27 of Code of Civil Procedure and the same has been allowed and also this Court, while passing the judgment, has observed that the Court below has not framed any issue with regard to the dispossession is concerned. When the same has not been considered by the Trial Court, an issue has to be framed with regard to dispossession/trespassing of property of the defendants by the plaintiffs and a definite finding has to be given on the same. Therefore, it requires interference of ` 63 this Court with regard to relief sought in the suit as well as the relief sought in the counter claim. Hence, I answer point Nos.4 and 5 accordingly.
66. In view of the discussions made above, I pass the following:-
ORDER
(i) The appeal is allowed and the impugned judgment and decree passed in O.S.No.16572/2005 dated 13.07.2012 on the file of the XIII Additional City Civil Judge, Mayohall Unit, Bengaluru is hereby set aside.
(ii) The application in I.A.No.3/2012 filed under Order 41 Rule 27 of Code of Civil Procedure is also hereby allowed and the matter is remanded back to the Court below to frame an issue with regard to the dispossession and also limitation and record further evidence by giving an opportunity to both the parties and dispose of the same within 6 months from the date of the appearance of the parties as mentioned below.
` 64
(iii) Both the parties are directed to appear before the Court below on 10.02.2020 without expecting any separate notice and this order itself is a notice to both parties. Respective counsel are directed to assist the Court to dispose of the case within the time stipulated.
(iv) Registry is directed to send the lower court records forthwith along with the application filed under Order 41 Rule 27 of Code of Civil Procedure with document.
Sd/-
JUDGE ST/PYR