Bangalore District Court
Sri.M.Krishnappa vs Smt.Zareena on 14 December, 2016
IN THE COURT OF THE X ADDL.CITY CIVIL & SESSIONS
JUDGE, BANGALORE CITY (CCH-26)
Dated this the 14th day of December 2016
PRESENT : Sri B.B. Jakati, B.A., LL.B., (Spl.)
LIX Additional City Civil and Sessions Judge &
C/c of X Additional City Civil and Sessions & Judge,
Bangalore City.
O.S.No.4060/2010
PLAINTIFF: Sri.M.Krishnappa
S/o.Muthappa
Hindu, Aged about 76 years,
Residing at Muttappa Block,
Gangenahalli,
Bengaluru - 560032.
V/s.
DEFENDANTS 1. Smt.Zareena
W/o. Munawar Pasha Sab
D/o. Late V.Sabjan
Aged about 46 years,
2. Mohammad Iliaz,
S/o. Munawar Pasha Sab
Aged about 27 years,
3. Mohammed Iyub
S/o. Munawar Pasha Sab
Aged about 26 years,
4.Mohammed Zakriya
S/o. Munawar Pasha Sab,
Aged about 25 years,
All are residing at No.14,
2 O.S.4060/2010
1st 'A' Cross, Muttappa Block,
Gangenahalli,
Bangalore - 560032.
Date of institution of the : 15.06.2010
suit
:
Nature of the suit Possession
Date of commencement of : 29.10.2013
recording of the evidence
Date on which
the : 14.12.2016
Judgment was pronounced.
: Year/s Month/s Day/s
Total duration
06 05 29
LIX ACC&SJ AND C/C OF X ACC&SJ,
BENGALURU CITY.
JUDGMENT
The plaintiff has filed this suit for possession and for mesne profits.
2. The facts in brief of the case of the plaintiff is that :-
Sri.Muttappa was the owner and possession of land bearing Sy.No.13/1 situated at Gangenahalli and the plaintiff filed suit for partition in O.S.No.10946/1994 before CCH-22. The suit 3 O.S.4060/2010 was ended in compromise and in the compromise some portion of land bearing Sy.No.13/1 situated at Muttappa Block, Gangenahalli, Bengaluru has been allotted to the share of plaintiff and the subject matter of this suit is part and parcel of such allotment. Therefore, the plaintiff is the owner of schedule property. It is the allegation of the plaintiff that Sri.V.Sabjan is the father of first defendant and grand father of defendant No.2 to 4. He filed O.S.No.3859/1983 for the relief of permanent injunction against the plaintiff herein which came to be dismissed on 20/11/1993. Again, Sri.V.Sabjan filed O.S.No.1022/1986 against the plaintiff herein for the relief of specific performance of contract contending that plaintiff herein executed agreement of sale in the year 1975.
That suit was dismissed on merit on 15/4/2006. Sri.V.Sabjan challenged the judgment and decree by filing R.F.A. No.1553/2006 before the Hon'ble High Court of Karnataka.
The said R.F.A. also came to be dismissed on 17/10/2006. It is the allegation of the plaintiff that he never sold or agreed to sell the schedule property in favour of Sri.V.Sabjan. In the 4 O.S.4060/2010 year 2009 he filed application for katha in his name before BBMP and the BBMP not changed the katha.
3. The plaintiff has categorically alleged that Sri.V.Sabjan Sab died in the year 2007 and he was in possession of the schedule property as an absolute owner. In April 2009, the defendants illegally trespassed over the schedule property and occupied two small sheds existing in the schedule property. The schedule property is measuring East-West 22 ft. South- North- 35 ft. The defendants have no right to retain the property and therefore, their possession is illegal. The plaintiff requested the defendants to vacate the schedule property and then also the defendants have not vacated the schedule property. Therefore the cause of action arose to him in the first week of April 2009 to file this suit for possession. Accordingly, he filed this suit and also sought for an enquiry in respect of mesne profits.
4. After service of summons, the defendants appeared through their counsel and filed written statement jointly. In 5 O.S.4060/2010 the written statement, initially, the defendants have denied the ownership of the plaintiff over the schedule property. But in the pleadings, subsequently the defendants have admitted the ownership of the plaintiff over the schedule property. The defendants have admitted the previous suits filed by Sri.V.Sabjan against the plaintiff and the result of those suits. They have denied dispossession of plaintiff over the schedule property in April 2009 and right of the plaintiff to ask the possession. The defendants interalia contended that in the year 1975, the plaintiff executed agreement of sale in favour of Sri.V.Sabjan for the sale of property measuring East-West 44 ft. and North-South : 35 ft. On the basis of agreement of sale, the plaintiff has put Sri.V.Sabjan sab in possession of that property. Subsequently, the plaintiff sold half of the property agreed to be sold in favour of Sri.V.Sabjan to Sri.Hombalaiah. Thereafter Sri.V.Sabjan retained the schedule property which is measuring East-West 22 ft and North-South : 35 ft. In the schedule property Sri.V.Sabjan sab constructed sheds and he was residing in the sheds along with the defendants. Sri.Sabjan sab was in possession of schedule property from 6 O.S.4060/2010 1975 till his death in the year 2007. After the death of Sri.Sabjan Sab the defendants have continued the possession over the schedule property. From 1975, till filing of this suit, in the year 2010, plaintiff has not initiated any action to take the possession and therefore the suit of the plaintiff for possession is barred by Law of Limitation. It is further allegation of the defendants that Sri.V.Sabjan Sab filed suit for injunction and suit for Specific Performance of contract. Because of many reasons Sri.V.Sabjan Sab could not prosecute those suits properly and therefore the suit came to be dismissed. However, he continued to be in possession of the schedule property and therefore the plaintiff has no right to seek for possession of the schedule property. On these main grounds the defendants prayed to dismiss the suit by awarding compensatory cost under Section 35(A) of C.P.C.
5. Based on these pleadings, my learned predecessor in office has framed following issues.
(1) Whether the plaintiff proves that he is the absolute owner of the suit property and entitled to seek possession against 7 O.S.4060/2010 defendants with a direction to hand over the possession to the plaintiff?
(2) Whether the plaintiff is entitled to claim future mesne profits u/o. 20 rule 12 C.P.C.?
(3) Whether the defendants prove that they are in lawful possession of the suit property by way of an agreement of sale executed in 1975?
(4) Whether the defendants further prove that the suit of the plaintiff is barred by limitation?
(5) Whether the defendants otherwise have perfected the title by adverse possession of the suit property?
(6) Whether the defendants are entitled to exemplary costs under Section.35(A) C.P.C. against the plaintiff for bringing vexatious and frivolous against them?
(7) What order or decree?
6. In order to substantiate the claim, P.A. holder of the plaintiff examined as P.W.1 and got marked 7 documents at Ex.P.1 to Ex.P.7. In support of the defence, fourth defendant examined as D.W.1 and the defendants have relied upon 45 documents marked at Ex.D.1 to Ex.D.45.
8 O.S.4060/2010
7. Inspite of sufficient opportunity, the plaintiff not advanced the arguments. Even the defendants have not advanced oral argument. However, the defendants have filed their written arguments on 5/4/2016. However, the defendants have filed their written arguments on 5/4/2016. I have gone through the written arguments of the defendants.
8. After perusing the material on record and the submissions made by the parties, I proceed to give the findings to the above issues as under:
Issue No.1 : In the affirmative Issue No.2 : In the affirmative Issue No.3 : In the negative Issue No.4 : In the negative Issue No.5 : In the negative Issue No.6 : In the negative Issue No.7 : As per final order, for the following:
REASONS
9. ISSUE NOs.1 AND 3 TO 5 : - These issues are interlinked with each other and the evidence is common. Therefore, I have taken these issues for common discussion. 9 O.S.4060/2010
10. Before adverting to disputed facts, it is necessary to point out admitted facts between the parties. The plaintiff has categorically pleaded that he acquired the ownership over the schedule property on the basis of decree in O.S.No.10946/1994. This fact has been admitted by the defendants in the written statement and also in the oral evidence of D.W.1. However, the plaintiff has produced the decree in O.S.No.10946/1994 on the file of III Additional City Civil and Sessions Judge, Mayohall, Bengaluru, CCH-22 at Ex.P.1. The same document has been produced by the defendants also in Ex.D.31. These records also relating to the ownership of the plaintiff over the schedule property and admitted facts. Therefore, in the pleadings and through Ex.P.1 and Ex.D.31 the defendants have admitted the ownership of the plaintiff over the schedule property. The schedule property is bearing No.14 in Sy.No.13/1 situated at Muttappa Block, Gangenahalli, Bengaluru and now it is coming within the jurisdiction of BBMP Ward No.96 measuring East - West : 22 feet and South - North : 35 feet. The location and boundaries 10 O.S.4060/2010 of the schedule property including the existence of two sheds in the schedule property is not disputed by all the parties to the suit. Therefore, I hold that plaintiff has established that he is the owner of the schedule property by virtue of compromise decree in O.S.No.10946/1994.
11. Both the parties have admitted that Sri.V.Sabjan is the father of defendant No.1 and grand father of defendant No.2 to 4. It is also admitted that Sri.V.Sabjan filed O.S.No.3859/1983 for the relief of permanent injunction and he filed O.S.No.1022/1986 for the relief of specific performance of contract against the plaintiff herein, contending therein that the plaintiff herein agreed to sell property measuring East-West : 44 ft and South-North : 45 feet in Sy.No.No.13/1 in his favour in the year 1975. It is also admitted that the suit filed in the year 1983 dismissed for non prosecution and O.S.No.1022/1986 dismissed on merits on 15/4/2006. It is also admitted that Sri.V.Sabjan, challenged the judgment and decree in O.S.1022/1986 by filing 11 O.S.4060/2010 R.F.A.1553/2006 which came to be dismissed on 17/10/2006.
12. The plaintiff has produced the judgment in O.S.No.1022/1986 at Ex.P.P.2. The defendants have produced order sheet in O.S.3859/1983 at Ex.D.42 and plaint, written statement and issues of that suit at Ex.D.43, Ex.D.44 and Ex.D.45. These records produced by the parties are relating to the admitted facts between the parties. No proof is required in respect of these records.
13. The defendants have produced copy of the plaint, copy of the written statement, issues, judgment and decree in O.S.No.4868/1995 at Ex.D.9 to Ex.D.12. The defendants have also produced certified copy of the agreement of sale standing in the name of Sri.Narayana Rao at Ex.D.13 which is the subject matter of O.S.4868/1995 including notice at Ex.D.14. These records produced by the defendants indicate that Sri.Narayana Rao S/o. Apparao filed O.S.4868/1995 on the file of XI Addl. City Civil Judge Bengaluru City for the relief of 12 O.S.4060/2010 specific performance of contract against the plaintiff herein i.e., M.Krishnappa. On merit, the said suit came to be decreed. The plaintiff Sri.Krishnappa herein was directed to execute the sale deed in favour of Sri.Narayanappa S/o. Apparao. The subject matter involved in that suit is portion of the property bearing Corporation No.4, Old property situated in Sy.No.13/1 of Gangenahally, Muttappa Block, Bengaluru, measuring East-West :- 41 feet and South-North : 19 feet. The subject matter of that suit is not the schedule property of this suit. Therefore the property of this suit and O.S.No.4868/1995 are distinct. It appears that the defendants have produced these records only in order to establish that plaintiff agreed to sell part of Sy.No.13/1 in favour of Sri.Narayanappa/Narayanarao and latter not executed the sale deed and therefore Sri.Narayanappa/Narayanarao obtained decree of specific performance of contract. These records produced by the defendants are from legal proceedings before the Court of law. The plaintiff has not denied these records. Therefore, from these records I hold that there was litigation between plaintiff herein and Sri.Narayanappa in respect of part of Sy.No.13/1 13 O.S.4060/2010 and court has directed the plaintiff to execute the sale deed in favour of Sri.B.Narayanappa in O.S.4868/1995.
14. The defendants have produced certified copy of judgment in O.S.No.6770/1990 at Ex.D.15 and also plaint in that suit at Ex.D.16. These records indicate that plaintiff herein by name Sri.M.Krishnappa filed O.S.6770/1990 against Sri.Narayana Rao S/o. Sri.Apparao who is the plaintiff in O.S.No.4868/1995 for possession of the property bearing Corporation No.4 measuring 41 ft. x 19 ft and also arrears of rent. He has also sought the relief of declaration that agreement of sale dated 10/4/1984 is forged document. That suit came to be decreed partly holding that plaintiff herein is the owner of the property in that suit and he has to vacate the possession of the schedule property in accordance with law. These proceedings are also not in dispute. The records in Ex.D.18 to Ex.D.20 are also relevant to suit O.S.No.6770/1990. The judgment was passed on 8/3/1999 in O.S.No.6770/1990 and thereafter the judgment was passed in O.S.4868/1995. All these records are relating to the dispute 14 O.S.4060/2010 between the plaintiff herein and Sri.Narayanappa @ Sri.Narayana Rao S/o. Apparao. These records are also admitted and these records are not having much bearing in the present suit.
15. The fact that Sri.V.Sabjan died on 31/12/2007 is not disputed by the plaintiff. The death extract of Sri.V.Sabjan is at Ex.D.8 which supports the claim of death. Ex.D.1 is the Election I.D. card of Sri.V.Sabjan. Ex.D.2 and Ex.D.3 are the Election card and AADHAR card of Mohammed Zakriya, who is the defendant No.4 and Ex.D.5 is the Election Card of defendant No.1. Ex.D.4 and Ex.D.6 are the receipts issued by gas agency. The address shown in these records is only disputed. Whether these records would come to the aid of the defendants to establish their possession over the schedule property prior to 2009 and from 1975 will be decided.
16. Ex.P.5 is the endorsement given by BBMP to the plaintiff on 9/9/2006 and Ex.P.6 and Ex.P.7 are the tax paid receipts issued by BBMP in favour of the plaintiff. These are disputed documents.
15 O.S.4060/2010
17. Having regard to these admitted facts and records, now the controversial issue is to be addressed.
18. The defendants claim that V.Sabjan Sab put in possession of schedule property in the year 1975 and such possession has been continued till his death in the year 2007 and after his death the defendants continued in possession of the schedule property. By denying these allegations, the plaintiff claims that the defendants have trespassed in the schedule property in the year 2009 and from 2009 the defendants are in unlawful possession. Inview of these contentions, whether V.Sabjan was in possession of schedule property from 1975 till his death and whether such possession has been continued by the defendants after 2007 till this date is to be decided.
19. Inorder to prove the possession of V.Sabjab and the defendants prior to 2009 and from 1975 the defendants have strongly placed reliance on the documents at Ex.D.1 to Ex.D.7. Ex.D.1 is election I.D. Card of V.Sabjan which show 16 O.S.4060/2010 that this I.D. Card was issued in the year 2005 and in this I.D. Card his address has been shown as 202(65), Muttappa Block, Ganganagar, Bangalore. Ex.D.3 is Aadhar Card of Mohammed Zakria and his address in the Card has been shown as Old No.10/2, New No.65, 1st 'A' Cross, Muttappa Block, Ganganagar, RT Nagar, Bangalore. Ex.D.5 is the Election ID Card of Zareena who is defendant No.1 and this Card was also issued in the year 2013 and the address is similar to the address shown in Ex.D.2 referred above. Ex.D.4 and Ex.D.6 are the receipts issued by Bharatgas, by its agency 'Shravan Gas Services' in the year 2014-15. These receipts are standing in the name of Munawar Pasha who is one of the defendant and in these receipts, the address has been shown as 10/2A, 1st A Cross, Muthappa Block, Ganganagar, RT Nagar, Bangalore.
20. The plaintiff himself has admitted that defendants are residing in the schedule property from 2009. The records at Ex.D.2 to Ex.D.6 came into existence after 2009. The suit is filed in the year 2010. Even the records at Ex.D.2 to Ex.D.6 17 O.S.4060/2010 came into existence after filing of the suit. Therefore, Ex.D.2 to Ex.D.6 are not in dispute including the address shown therein. The plaintiff himself has admitted that in the year 2003 and even from 2009, the defendants are residing in the address shown in these records. Therefore, Ex.D.2 to Ex.D.6 shows the possession of defendants over the schedule property after 2009 which is not material.
21. Ex.D.1 belonging to V.Sabjan show that he was residing in 202 (65) Muthappa Block, 1st Cross, Ganganagar, B'lore. The address shown in this I.D. card and the I.D. Cards in Ex.D.2 and Ex.D.5 does not tally with each other. The house numbers are different. The house number shown in Ex.D.2 to 6 is relating to schedule property which has not been disputed by the plaintiff. Therefore, Ex.D.1 is not sufficient to hold that V.Sabjan was residing in the schedule property as on the date of issuance of I.D. Card in the year 2005. Therefore, Ex.D.1 would not come to the aid of the defendant to prove that V.Sabjab was in possession of the schedule property in the year 2005 or from 1975. 18 O.S.4060/2010
22. Ex.D.7 is the notice under Section 117 of KMC Act 1976 which was issued on 29.1.2005 to V.Sabjab. In this notice it has been stated that property which was in occupation or under the ownership of V.Sabjan came within the jurisdiction of BBMP Ward No.98 and therefore BBMP called upon V.Sabjan to furnish documents of the property to assess the tax. In this notice there is no mention of property number which was in possession of V.Sabjan. Therefore, this notice would not speak that schedule property was in possession of V.Sabjan. It may refer to some other property. In the absence of number of the property shown in Ex.D.7, it cannot be held that V.Sabjan was in possession of schedule property and BBMP called upon him to furnish the records of the property. Thus, I hold that this document also does not speak the possession of V.Sabjan over the property from 1975 till his death. Other than these records, there is no documentary evidence produced by the defendants to show the possession of V.Sabjan from 1975 till 2007. 19 O.S.4060/2010
23. The defendants excluding the self testimony of DW-1 have not adduced the evidence of any witnesses to show that V.Sabjan was in possession of schedule property from 1975 till his death. The self servicing statement of DW-1 is not sufficient to establish the possession of defendants or V.Sabjan prior to 2009. Moreover the statement of DW-1 has been denied in the cross-examination and even the P.W.-1 has categorically denied the statement of DW-1 about the possession from 1975. In the absence of documentary evidence the oral testimony of DW-1 is not sufficient to prove the possession over the schedule property from 1975.
24. On the other hand, the plaintiff relied upon the judgment in OS 1022/1986 to show Sabjan was not in possession of schedule property in 2005. This document is at Ex.P.2. The judgment at Ex.P.2 is not in dispute. In Ex.P.2 the Court has framed issue No.2 relating to possession of V.Sabjan over the schedule property in this suit and given the finding that schedule property was not in possession of V.Sabjan under agreement of sale. This judgment and 20 O.S.4060/2010 decree reached its finality. Therefore, finding given under Ex.P.2 is binding on V.Sabjan and also the defendants. Therefore, Ex.P.2 is sufficient to disprove the contention of the defendants about the possession of V.Sabjan from 1975 till this death.
25. After mar-shelling, the oral and documentary evidence referred above, I hold that plaintiff established that defendants came in possession of the schedule property in the year 2009 and not prior to such date. Further, I hold that V.Sabjan was not in possession over the schedule property from 1975 till 2007 i.e., till his death under agreement of sale of the year 1975.
26. The defendants claim that their possession over the schedule property is for statutory period of 12 years and within such period the plaintiff has not taken any action to take the possession and therefore, the possession of defendants over schedule property was adverse and through adverse possession the defendants have perfected their title 21 O.S.4060/2010 over the schedule property. Whether this plea is available to the defendants and V.Sabjan and whether the defendants have established perfection of title over schedule property by adverse possession will have to be decided. To decide this controversy, it is necessary to point out the principles relating to adverse possession.
27. The Hon'ble Supreme Court in 2015 SCC on Line SC 1163 (M.Venkatesh and Others V/s. Commissioner, Bangalore Development Authority) in para No.15 to 18 held as under;
" Coming then to the question whether the plaintiffs- respondents could claim adverse possession, we need to hardly mention that well known and oft quoted maxim nec vry nec clam, nec precario meaning thereby that adverse possession is proved only when possession is peaceful, open, continuous and hostile. The essentials of adverse possession were succinctly summed up by this Court in Karnataka Board of Wakf Govt. of India (2004) 10 SCC 779 in the follows words;22 O.S.4060/2010
"11. In the ye of the law, an owner would be deemed to be in possession of a property so long as thee is no intrusion. Non-use of the property by the owner even for a long time won't effect 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 of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that has possession in "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. (See S.M.Karim V. Bibi Sakina (AIR 1964 SC 1254), Parsinni v. Sukhi (1993) 4 SCC 375 and D.Venkatarayappa V. State of karnataka (1997) 7 SCC 567). Physical fact of exclusive possession and the animus possidendie to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a 23 O.S.4060/2010 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.
16. Reference may also be made to the decision of this court in Saroop Singh Banto (2005) 8 SCC 330, where this Court emphasized the importance of animus possidendi and observed:
"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 commence from the date of defendant's possession becomes adverse. (see Vasatiben Prahladji Nayak V. Somnath Muljibhai Nayka (2004) 3 SCC 376)
30. "Animus possidendi" is one of the ingredients of adverse possession. Unless the person possessing the land has the requisite animus the period for prescription does not 24 O.S.4060/2010 commence. As 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. (see Mohd. Mohd. Ali V. Jagadish Kalita (2004) 1 SCC 271, SCC para 21.)"
17. Also noteworthy is the decision of this Court in Mohan Lal V. Mirza Abdul Gaffar (1996)1 SCC 639, where this Court held that claim of title to the property and adverse possession are in terms contradictory. This Court observed;
"4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right there under and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years i.e., up to completing the period of his title by prescription nec Vi, nec claim, nec precario. Since, the appellant's claim is founded on Section 53- A, it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby 25 O.S.4060/2010 the plea of adverse possession is not available termination of tenancy he appellant."
The Hon'ble Supreme Court in the citation reported in (2001) 9 Supreme Court Cases 385 (Bhura Mogiya and Others V/s. Satish Pagariya and Others) in para No.5 held as under;
"Learned counsel then urged that in any case the defendants having remained in possession for a considerable period of time, more than 12 years, thereby acquired title by adverse possession. Admittedly, the defendants came into possession on the basis of agreement, which was a permissible possession. Once the defendant's possession was by virtue of an agreement it is not open to them termination of tenancy take a plea that they acquired title by adverse possession. Permissible possession cannot be converted in to adverse possession unless it is proved that the person in possession asserted and acquired adverse title to the property to the knowledge of the true owner for a period of 12 years and above. We do not find any merit in the contention of the learned counsels for the appellant."26 O.S.4060/2010
28. These principles clearly indicate that the persons who enter into the possession of immovable property by virtue of an agreement of sale, it is not open to him to take the plea of adverse possession against the owner. In the present case, the defendants have contended that V.Sabjan entered into possession of schedule property on the basis of agreement of sale and therefore, continued in such possession till his death and thereby perfected his title by adverse possession. It is also the case of the defendants that even after death of V.Sabjan, they continued in possession of schedule property and perfected their title by way of adverse possession. The defendants are claming right of adverse possession under V.Sabjan. The plea of adverse possession is not available to V.Sabjan and therefore even said plea is not available to the defendants. Thus, I hold that the plea of adverse possession taken by the defendants is not at all maintainable in law.
29. For the sake of discussion, whether there is any evidence to show that V.Sabjan or the defendants have perfected their title by adverse possession is to be looked into. 27 O.S.4060/2010 It has been held earlier that the defendants failed to establish the possession of schedule property by V.Sabjan from 1975 and even it has been held that defendants have failed to establish their possession over the schedule property for continuous period of twelve years. All defendants are in possession of schedule property from 2009 and the suit has been filed in the year 2010. Therefore, the possession of V.Sabjan and the defendants was not for continuous period of twelve years. When the possession was not for twelve years, the defendants cannot succeed in proving the adverse possession.
30. Inorder to perfect the title over the immovable property by adverse possession, the party must prove that his possession was peaceful, open and continuous. The possession adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It starts with wrongful disposition of the rightful owner and be actual, visible, exclusive hostile and continued over the statutory period. But in the present case, there is no evidence 28 O.S.4060/2010 by any of the neighbourers to show that V.Sabjan was in possession of schedule property from 1975 peacefully, openly and continuously till his death. Further, there is no evidence on record to show that defendants are in possession of schedule property for statutory period of twelve years continuously, peacefully and openly to the knowledge of the plaintiff. Thus, I hold that even there is no evidence on record to prove that defendants or V.Sabjan perfected their title over the schedule property. Accordingly, I hold that the defendants have failed to prove plea of adverse possession.
31. The defendants have taken the defence that suit of the plaintiff is barred by law of limitation. Whether there is any substance in this contention is to be looked into. As already decided the possession of the defendants over the schedule property is from 2009. When the suit was filed in the year 2010 for possession, suit is well within limitation prescribed under Article 65 of Limitation Act. Therefore, it cannot be held that suit is barred by limitation. For the sake of discussions even if is presumed that V.Sabjan and defendants were in 29 O.S.4060/2010 possession of schedule property from 1975 and such possession has been continued by the defendants till today, such possession would not bar the plaintiff to seek the relief of possession for the reasons stated herein after.
32. Article 65 of the Limitation Act provides the limitation of twelve years to file a suit for possession of immovable property based on title and such limitation starts when the possession of defendants becomes adverse to the plaintiff. The present suit is filed by the plaintiff based on his title and therefore Article 65 is applicable. In order to show that suit of the plaintiff is barred, defendants are required to establish that their possession over the schedule property become adverse to the plaintiffs prior to twelve years as on the date of the suit. But the defendants not established their possession prior to 2009 or prior to twelve years from the date of suit. It was filed in the year 2010. Further, there is no evidence to show that possession of defendants over the schedule property has become adverse to the interest of rightful owner during continuous period of twelve years. Therefore, even on such 30 O.S.4060/2010 ground the contention of the defendants regarding limitation would not survive under law. Thus, I hold that suit of the plaintiff filed for possession based on title in the year 2010 is well within limitation prescribed under Article 65 of Limitation Act. For these reasons, I answer issue No.1 in the affirmative, issue No.3 to 5 in the negative.
33. ISSUE NO.2:- The plaintiff has established his ownership over the schedule property and till today he continued to be the owner of the schedule property. The plaintiff has also established that defendants are in possession of schedule property from 2009 unlawfully. The defendants have admitted their possession over the schedule property. The possession of defendants is unlawful. The defendants are not the owners of the schedule property and even they have not returned the possession of schedule property. When the defendants are enjoying the schedule property from 2009 unlawfully, they are under obligation and liable to pay mesne profit to the plaintiff. Therefore, enquiry is necessary regarding 31 O.S.4060/2010 mesne profits or damages. Accordingly, I answer this issue in the affirmative.
34. Issue No.6:- The plaintiff has succeeded in proving his case and he suit of the plaintiff is not frivolous or false. Therefore, the defendants are not entitled for exemplary costs under Section 35(A) of C.P.C. Accordingly, I answer issue No.6 in the negative.
35. ISSUE NO.7:- Inview of the above, I proceed to pass the following:
ORDER The suit of the plaintiff is decreed with costs.
The defendants are hereby directed to hand over the possession of the schedule property to the plaintiff within three months from the date of judgment.
There shall be enquiry under Order XX Rule 12 of C.P.C. in respect of mesne profit.
In case the defendants fail to vacate the schedule property, the plaintiff is at liberty to take 32 O.S.4060/2010 the possession of schedule property from the defendants in accordance with law.
Draw decree accordingly.
[Dictated to the Judgment Writer/Stenographer, transcribed by her, corrected, signed and then pronounced by me, in the Open Court on this the 14th day of December 2016].
(B.B. Jakati) LIX ACC&SJ And C/c of X ACC&SJ, Bengaluru City.
SCHEDULE All that piece and parcel of the Dry land bearing Sy.No. 51/1, Mr-12/2005-06, measuring 5 ½ guntas situated at Byrasandra Village, K.R.Puram Hobli, Bangalore East (formerly South) Taluk and bounded on the East by : Appanna & Chinnappa's property West by : Road & Remaining portion of the property North by Remaining portion : of the property South by : HAL Compound (B.B. JAKATI) LIX ACC&SJ AND C/C OF X ACC&SJ, BENGALURU CITY.
33 O.S.4060/2010ANNEXURE
1. List of witnesses examined on behalf of the Plaintiff/s:
P.W.1 Sri.M.K.Munisrinivas
2. List of witnesses examined on behalf of the Defendant/s:
D.W.1 Sri.Mohammad Zakriya
3. List of documents marked on behalf of the Plaintiff/s:
Ex.P.1 Certified copy of
O.S.No.10946/1994
Ex.P.2 Certified copy of judgment
in O.S.1022/1986 dt.
15/4/2006
Ex.P.3 Certified copy of order
sheet in RFA 1553/2006
Ex.P.4 Certified copy of partition
deed dt. 21/6/1971
Ex.P.5 Certified copy of
endorsement of BBMP dt.
9/9/2009
Ex.P.6 and Tax paid receipts
Ex.P.7
4.List of documents marked on behalf of the defendant/s:
Ex.D.1 Voter ID of Sri.V.Sabjan
Ex.D.2 Voter I.D. of Md Zakriya
Ex.D.3 AADHAR card of Md
Zakriya
Ex.D.4 Gas receipt
Ex.D.5 Voter ID card of defendant
34 O.S.4060/2010
No.1
Ex.D.6 Gas receipt
Ex.D.7 Tax notice dated
29/1/2005 issued by
BBMP
Ex.D.8 Death certificate of
Sri.V.Sabjan
Ex.D.9 Certified copy of issues in
O.S.4868/1995
Ex.D.10 Certified copy of judgment
and decree in
O.S.No.4868/1995
Ex.D.11 Certified copy of plaint
Ex.D.12 Certified copy of written
statement
Ex.D.13 Certified copy of
agreement of sale
Ex.D.14 Certified copy of legal
notice
Ex.D.15 Certified copy of judgment
and decree in
O.S.No.6770/1990
Ex.D.16 Certified copy of plaint
Ex.D.17 Certified copy of notice
issued by BBMP dt.
28/8/1996
Ex.D.18 Certified copy of lease
agreement
Ex.D.19 Certified copy of plan
Ex.D.20 Certified copy of plan
Ex.D.21 Certified copy of objection
in HRC No.10005/1984
Ex.D.22 Certified copy of HRC
petition
Ex.D.23 Certified copy of objection
in HRC No.10005/1984
Ex.D.24 Certified copy of order
sheet
Ex.D.25 Certified copy of legal
35 O.S.4060/2010
notice dated 20/2/1999
Ex.D.26 Certified copy of legal
notice dated 25/3/1999
Ex.D.27 Certified copy of petition
filed by Sri.Krishnappa
Ex.D.28 Certified copy of legal
notice
Ex.D.29 Certified copy of complaint
given by Krishnappa
Ex.D.30 Certified copy of petition
given by Krishnappa to
Revenue Officer
Ex.D.31 Certified copy of
compromise petition in
O.S.No.10946/1994
Ex.D.32 to Certified copy of Postal
Ex.D.35 acknowledgments
Ex.D.36 Certified copy of certificate
issued by BBMP
Ex.D.37 Certified copy of property
extract
Ex.D.38 Certified copy of show
cause notice issued by
corporation
Ex.D.39 Certified copy of legal
notice
Ex.D.40 Certified copy of legal
notice
Ex.D.41 Certified copy of postal
acknowledgment
Ex.D.42 Certified copy of order
sheet in O.S.3859/1983
Ex.D.43 Certified copy of plaint in
O.S.3859/1983
Ex.D.44 Certified copy of written
statement
Ex.D.45 Certified copy of issues
36 O.S.4060/2010
(B.B. Jakati)
LIX ACC&SJ And C/c of X ACC&SJ,
Bengaluru City.