Karnataka High Court
Venkatamma vs Padmamma D/O Ramreddy on 17 June, 2019
Author: B.M.Shyam Prasad
Bench: B.M.Shyam Prasad
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 17TH DAY OF JUNE 2019
BEFORE
THE HON'BLE MR.JUSTICE B.M.SHYAM PRASAD
R.F.A.NO.680/2005
BETWEEN:
Venkatamma w/o Ramreddy
Age: 58 Years Occ: Household
R/o: Madkal, Taluk Sedam
Now staying at Jiradpalli
Taluk Sedam, Dist: Gulbarga - 585 222.
... Appellant
(By Smt. Hema L.K., Advocate)
AND:
1. Padmamma D/o. Ramreddy
Age: 56 Years, R/o: Madkal
Taluk Sedam, Dist. Gulbarga - 585 222.
2. Narayan Reddy, S/o Ramreddy
Age: 52 Years Occ: Agril.
3. Venkatreddy, S/o Ramreddy
Age: 25 Years Occ: Student.
Both R/at: Parakpalli
Taluk Tandur, Dist. Rangareddy
(A.P.) - 510001.
... Respondents
(By Sri.B.D.Hangarki and
Sri S.B.Hangarki, Advocates)
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This Regular First Appeal is filed under Section 96
of Code of Civil Procedure against the judgment and
decree dated 25.02.2005 passed in O.S.No.328/2002 on
the file of the Civil Judge (Sr.Dn.), Sedam, partly
decreeing the suit of the appellant herein by declaring
that the appellant herein has got ½ share in house
No.2-40 and further holding she is entitled for partition
and separate possession of her ½ share in house No.2-
40 and dismissing the suit insofar as it relates to
declaration and further dismissing the same in respect
of remaining land and house properties (except house
No.2-40).
This appeal coming on for Hearing this day, the
Court delivered the following:
JUDGMENT
This appeal is by plaintiff in O.S.No.328/2002 on the file of the learned Civil Judge (Sr. Dn.), Sedam (initially filed as a miscellaneous proceedings in Misc.
Case No. 93/1985 and later numbered as O.S.No.231/1988 on the file of Civil Judge Gulbarga). This suit is the second round of litigation for the appellant. The appellant initially instituted the suit in O.S.No.27/1981 on the file of Munsiff Court, Sedam against Sri.Ram Reddy and Smt. Padmamma (the respondent No. 1) contending that the respondent No. 1 3 was not the legally wedded wife of Sri. Ram Reddy, and that appellant, being his legally wedded wife, was entitled for maintenance from him. This suit in O.S.No.27/1981 was decreed on 31.08.1983 granting to the appellant maintenance with charge over certain properties mentioned in the decree concluding that their marriage was solemnized prior to Hindu Marriage Act, 1955. The judgment and decree in O.S.No.27/1981 was impugned in the appeal in R.A.No.79/1983, but this appeal was dismissed. The judgment and decree dated 31.08.1983 was ultimately confirmed by this Court in RSA.No.744/1992 on 17.7.1998. Sri.Ram Reddy died during the pendency of the appeal R.A.No.79/1983.
2. The appellant, after the demise of Sri Ram Reddy, has commenced the present the suit in O.S.No.323/2002 for declaration that (i) the appellant is the owner of the different properties described in the plaint as schedule A properties as the legal heir of Sri. 4 Ram Reddy, (ii) that Sri. Venkat Reddy (the respondent No. 3) is not the adopted son of Sri.Ram Reddy, (iii) for possession of the schedule A properties, and (iv) for mesne profits. The appellant has included a total number of 18 immovable properties in the schedule - A and certain movable properties in schedule - B. The Civil Court by impugned judgment dated 25.02.2005 has partially decreed the suit. The Civil Court has declared that the appellant is entitled for ½ share in one of the suit schedule A property viz., property bearing Sy.No.2/40 of Madkal Village Sedam Taluq (Schedule A Item No.13 Property) and dismissed the suit insofar as claim for other properties.
3. The parties to these proceedings are referred to as they are arrayed in suit in O.S.No.323/2002 for convenience. Initially, the suit is initiated as informa pauperize proceedings under the provisions of Order 5 XXXIII of CPC. A brief statement of the plaintiff's case is as follows:
3a. The plaintiff is the wife of Sri Rama Reddy and their marriage was solemnized in the year 1951.
The plaintiff and Sri Ram Reddy lived happily until the year 1961. The plaintiff could not be in the family way and therefore, Sri Ram Reddy married Smt Padmamma
- defendant No.1 in the year 1966. The marriage of Ram Reddy and defendant No.1 is a void marriage and the plaintiff is the legally wedded wife of Sri Ram reddy.
Even the defendant No.1 could not be in the family way after her marriage to Sri Ram Reddy. The plaintiff was driven out of the matrimonial house in the year 1971, and she is living with her parents. Sri Ram Reddy did not provide for the plaintiff's maintenance and as such, she instituted suit in O.S.No.27/1981 on the file of Munsiff at Sedam. This suit, being decreed, was pending consideration in the appeal in R.A.No.79/1983 6 as of the date of the plaint in the present suit in O.S.No.323/2002. Sri Ram Reddy died on 30.11.1987 intestate, and on his demise, the plaintiff succeeded to all the immovable properties (described in the plaint schedules) being the sole legal heir of Sri Ram Reddy.
3b. The defendant No.1 is made a party to the suit because she claims to be the legally wedded wife and that Sri Ram Reddy had settled certain properties in her favour. The defendant No.3 is made a party to the suit because he claims to be the adopted son of Sri Ram Reddy and defendant No.1, and he is also claiming that Sri Ram Reddy had settled certain suit schedule properties in his favour in a partition in the year 1973-
74. The defendant No.2 is made a party to the suit because he is asserting claim over certain other suit schedule properties contending that there is an oral gift in his favour from Sri Ram Reddy.7
3c. The defendants are asserting title to the corresponding suit schedule properties based on the aforesaid family arrangements/oral gift deed and the alleged subsequent mutation in the revenue records in their favour. These transactions are set up only to defeat the plaintiff's share. Sri Ram Reddy had not made such arrangements in reality. The defendants are in unlawful possession of the suit schedule properties.
4. The defendants filed common written statement. They contended that the plaintiff is Sri Ram Reddy's sister's daughter. Sri Ram Reddy had lent certain money and gold ornaments to his sister and her husband, and instead of returning the money and gold ornaments lent, they were insisting that Sri Ram Reddy should marry the plaintiff. Sri Ram Reddy did not want to marry the plaintiff because they are related. The plaintiff was set up to stake a wrong claim as the legally wedded wife of Sri Ram Reddy and the present suit is 8 filed to grab Sri Ram Reddy's properties. Sri Ram Reddy and the defendant No.1 were the legally wedded husband and wife.
5. The defendants also contended that the defendant Nos.2 and 3 are the sons of the sister of defendant No.1, and defendant No.3 was given in adoption to Sri Rama Reddy and defendant No. 1 by his natural mother and father. In a family arrangement in the year 1965, Sri Ram Reddy settled suit item Nos.1, 2, 6, 7, 9 and 10 properties in favour of the defendant No.1. In yet another family arrangement in the year 1969, Sri Ram Reddy settled suit item Nos.5, 8 and 11 properties in favour of the defendant No.3. Sri Ram Reddy filed application with the authorities for change of mutation in the name of defendant No.1 and 3. Similarly, the landed properties in item Nos.3 and 4 of the suit schedule were transferred in favour of the defendant No.2 vide an oral gift in the days prior to 9 1965. Insofar as the other properties viz., item Nos.12 to 18 of the plaint schedule, the defendants contended that the plaintiff had mis-described those properties in the plaint schedule.
6. The defendants further contended that they were in possession of the respective properties as the absolute owners thereof. Therefore, the plaintiff was not entitled for declaration of ownership or possession to the schedule properties. The defendants denied plaintiff's assertion that Sri Ram Reddy had not settled the respective properties in favour of the defendants, and these transactions were being set up by the defendants only to defeat her claims in the properties.
7. The Trial Court framed 12 issues, including the Issue as to which relief the plaintiff would be entitled to. The Issues framed by the Trial Court are as follows:
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"1. Whether the plaintiff proves that, she being the legally married wife of deceased Ramreddy, is the owner of the suit properties?
2. Whether the defendants prove that defendant no.1 is the only married wife of said Ramreddy in the year 1953-54 and defendant no.3 is the adopted son of late Ramreddy?
3. Whether the plaintiff proves that till his death, Ramreddy was in possession and enjoyment of suit properties?
4. Whether the defendants prove that they are in possession of the suit properties as contended and they have even perfected their title by adverse possession also?
5. Whether the plaintiff proves that the possession of the defendants over suit properties is illegal from 1.12.83?
6. Whether the plaintiff proves further that, in order to deprive her of her right of 11 maintenance, late Ramreddy got made fictitious entries in the name of defendants for suit properties as alleged?
7. Whether defendants prove that the suit is barred by time?
8. Whether plaintiff proves that she is entitled to mesne profits as the rate claimed?
9. Whether the plaintiff proves cause of action for the suit?
10. Whether the plaintiff can be granted the reliefs claimed?]
11. Whether the defendants can be granted compensation cost?
12. To what relief, the parties are entitled? "
8. The plaintiff has examined herself as PW.1 and marked 77 exhibits. These exhibits include the pleadings in O.S.No.27/1981, R.A.No.79/1983 and RSA 12 No.744/1992, the certified copy of the judgment in O.S.No.27/1981 R.A.No.79/1983 and RSA No.744/1992 and the revenue records viz., Record of Rights for the suit schedule properties for the years commencing from 1965-1966 to 1984-1985.
9. The plaintiff is categorical in her chief- examination that her husband, Sri Ram Reddy was the owner in possession of the suit schedule properties as on the date of his demise. Her husband, Sri Ram Reddy never took the defendant No.3 in adoption. She reiterated that she had filed the earlier suit in O.S.No.27/1981 for maintenance. She admitted in her cross-examination that as of the demise of Sri Ram Reddy, the appeal in R.A.No.79/1983 was pending consideration, and the defendants had got their names mutated in the revenue records for the suit schedule properties. But she asserted that they had obtained such mutation in the revenue records without notice to 13 her after the demise of Sri Ram Reddy. Further, she denied that the revenue records for the suit schedule A properties were made in the name of the defendants even during the lifetime of Sri Ram Reddy. However, she is categorical, even in her cross-examination, that the defendants entered possession of the suit schedule properties after the demise of Sri Ram Reddy.
10. The defendants examined defendant Nos.1 and 2 as DW.1 and DW.2, and the defendant No.3 as DW.9. Other than these witnesses, the defendants also examined Sri Hanmanthu S/o Siddappa as DW.3, Sri Narasingrao S/o T.Venkati as DW.4, Smt. Venkatamma W/o Nagappa Mantri as DW.5, Sri Vithalreddy S/o Bichareddy as DW.6, Lachamappa S/o Ashappa Kuntanpalee as DW.7 and Sri Sidramappa S/o Sharnappa Appaji as DW.8.
11. Sri Hanmanthu S/o Siddappa (DW 3) is examined as the owner of one of the lands adjoining the 14 suit schedule properties in Sy.No.40 (suit item No.5 property)). He has stated in his evidence that the defendant No.3 is in possession of this land in Sy No.40, and he is growing horse-gram. He has stated that the defendant No.1 is in personal cultivation of lands in six survey numbers. He has also stated about the defendant No.3 being taken in adoption by the defendant No.1 and Sri Ram Reddy. However, he has stated that he did not participate in the adoption ceremony and it was his father who was present during such ceremony.
12. Sri Narasingrao, a photographer, is examined as DW 4. This witness has stated that he was given the contract to shoot photographs at the time of the wedding of the defendant No.3. He was assigned this job by Sri Ram Rreddy many years prior to the date of the suit. Smt. Venkatamma is another witness (DW
5), who has spoken about the defendant No.3 being 15 taken in adoption by Sri Ram Reddy and the defendant No. 1. She has stated that she was present at the time of the adoption ceremony. She has also stated that she does not know that plaintiff was married to Sri Ramreddy, and according to her, the defendant No. 1 was married to Sri Ram Reddy and they took defendant No.3 in adoption.
13. Sri Vithalreddy and Sri Sidramappa (DW6 and DW8) are examined respectively as an attesting witnesses and the scribe of the Will 4.3.1983 allegedly executed by Sri Ramreddy. Sri Lachamappa, DW 7, is the owner of land in Sy.No.58, which is adjacent to the lands claimed by defendant No.2 viz., properties described as plaint schedule item Nos.3 and 4. This witness has stated that defendant No.2 is personally cultivating suit item Nos.3 and 4 properties for the last 38 years.
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14. The evidence of the defendants viz., defendant Nos.1, 2 and 3, as DWs.1, 2 and 9 is a reiteration of their case that the defendant No.1 was married to Sri Ram Reddy in the year 1953-54; she and Sri Ram Reddy did not have any children and therefore, Sri Ram Reddy, with her consent took defendant No.3 in adoption on 19.03.1969 when the requisite giving and taking ceremonies were conducted. Sri Ram Reddy and defendant No.1 performed the marriage of defendant No.3 on 07.06.1983. Sri Ram Reddy, even prior to the defendant No.3 being taken in adoption, effected a family arrangement in the year 1965. In such partition, he allotted suit schedule item Nos.1, 2, 6, 7, 9 and 10 properties to the defendant No.1. She has been in possession of the property ever since and record of rights have been made in her name. Sri Ram Reddy later effected another partition and gave properties described as item Nos.5, 8 and 11 to defendant No.3, who is in possession of these properties. 17
15. The defendant No.2 is the son of the elder sister of the defendant No.1. Sri Ram Reddy out of his affection for defendant No.2, gifted suit item Nos.3 and
4. The defendant No.2, because he was minor, was represented by his father. Sri Ram Reddy delivered the possession of these properties to defendant No.2 as part of the gift transaction.
16. The civil Court, while answering Issue No. 1, has concluded that both the plaintiff and the defendant No. 1 were legally wedded wife of Sri Ram Reddy. The civil Court has relied upon the decision of this Court in RSA No. 744/1992 in arriving at this conclusion. As regards the asserted adoption of defendant No. 3 by Sri Ram Reddy and the defendant No. 1, the civil Court has concluded that such adoption was invalid because adoption was without the consent of the plaintiff. . 18
17. The civil Court has concluded that the suit schedule properties were ancestral properties of Sri Ram Reddy, and Sri Ram Reddy held the suit schedule properties as the sole surviving male member of the co- parcenery. Therefore, Sri Ram Reddy could deal with the suit schedule properties as deemed fit by him. Thus being entitled to deal with the suit schedule properties. Sri Ram Reddy himself dealt with certain suit schedule properties in favour of the defendants as asserted by them. The civil Court has accepted the defendants' case of family arrangements by Sri Ram Reddy on the premises that the revenue entries were at the instance of Sri Ram Reddy and he had not challenged the corresponding revenue entries in favour of the defendants. The civil Court has also concluded that the corresponding transfers vide family arrangements and mutation of revenue entries in favour of the defendants could not be disbelieved because Sri. Ram Reddy admitted the transaction in favour of the defendants in 19 the Written Statement filed by him in OS No. 27/1981 and in the 'Will' dated 4.3.1983 executed by him in favour of the defendants.
18. Insofar as the 'Will' dated 4.3.1983, the finding by the civil Court is that though the 'Will' dated
4..3.1983 is not a testamentary document in the sense that any bequeath is made thereunder, it is an agreement executed to confirm the arrangements made in favour of the defendants. The 'Will' dated 4.3.1983 is proved not as a Will but as an agreement by Sri Ram Reddy as regards delivery of possession of the subject properties to the respective defendants. Therefore, the plaintiff, who could not have asserted any right in the suit schedule properties during the lifetime of Sri Ram Reddy, cannot challenge the transfer of the corresponding lands or the revenue entries therefor in favour of the defendants.
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19. The civil Court, while considering Issues on whether the possession of the suit schedule properties by the defendants was illegal and whether the defendants had perfected their title to the suit schedule properties by adverse possession, has concluded that even if the corresponding transfers in favour of the defendants by Sri Ram Reddy vide family arrangements were invalid, the defendants being in possession of the respective suit schedule properties for over 12 years had perfected their title to the respective suit schedule properties by adverse possession. The suit insofar as the suit schedule properties, except suit item No. 13 is barred by limitation. The plaintiff is entitled for a share only in suit item No. 13.
20. The civil court has opined that the suit insofar as the prayer for recovery of possession of the suit schedule properties settled in favour of the defendant No. 1 was barred by limitation under article 21 110 of the Limitation Act, 1963 because Sri Ram Reddy had himself lost the right to recover possession of these properties as he had settled them in favour of the defendant No. 1 in the year 1969. If Sri Ram Reddy did not have the right to recover possession as of the date of his demise, the plaintiff, who claims right under him through succession, would not be entitled to recover possession. As regards recovery of possession of the property claimed by the defendant No. 2, the civil Court has held that even if it is presumed that the transaction in favour of defendant No. 2 was in the mid-year of 1973, he perfected his title with the lapse of 12 years by the mid-year of 1985. Therefore, the suit for recovery of the properties filed in the year 1988 claimed by defendant No. 2 was barred under Article 65 of the Limitation Act, 1963.
21. As regards the prayer against defendant No.3 for declaration that his adoption was invalid and 22 for recovery of possession of the properties claimed by him, the civil Court has concluded that the defendant No. 1 and Sri Ram Reddy had pleaded about adoption of the defendant No. 3 in the suit in OS No. 27/1981. The written statement in the suit in OS No. 27/1981 was filed on 28.9.1981. The present suit filed in the month of November 1985 was barred by limitation under article 57 of the Limitation Act, 1963.
22. The learned counsel for the plaintiff argued that in the earlier round of litigation the plaintiff was also declared to be the legally wedded wife of Sri Ram Reddy and therefore, there could not have been any dispute in this regard. Similarly, Sri Rama Reddy , defendant No. 1 and defending No. 3 had pleaded family arrangements and adoption in the earlier suit in OS No. 27/1981. The defence by the defendants in this case was very similar to the defence in the earlier suit in OS No. 27/1981, and in fact, the contents of the Will dated 23 4.3.1983 are verbatim repetition of the defence taken in the earlier proceedings. It is after adjudication in these regards, the plaintiff is granted maintenance with charge over the suit schedule properties. Therefore, the civil court could not have, based on the alleged family arrangements/adoption and Gift, concluded that Sri Ram Reddy was not in possession of certain suit schedule properties as of the date of the demise.
23. The learned counsel for the plaintiff also argued that the defendants have asserted family arrangements on two occasions: the first family arrangement when certain properties were settled in favour of defendant No. 1, and the second family arrangement when certain properties were settled in favour of defendant No. 3. But, these family arrangements have not been established. According to the relevant Record of Rights marked as exhibits, Sri Ram Reddy is shown as being in possession and 24 enjoyment of the suit schedule properties even after the said family arrangements, and this would not have been so if there family arrangements as asserted by the plaintiffs.
24. The learned counsel for the plaintiff submitted that the civil Court despite holding that the transfer of certain suit schedule properties in favour of defendant No. 2 under an alleged oral gift is invalid, has concluded that the defendant No. 2 was put in possession of the corresponding suit schedule properties and continued in possession for more than 12 years, he has perfected title thereto by adverse possession. The civil Court's finding in this regard is based on presumptions.
25. The learned counsel for the plaintiff further submitted that the civil Court has concluded that the defendants, as of the date of the demise of Sri Ram Reddy, were in possession of the corresponding suit 25 schedule properties and their possession was not illegal or unlawful. The civil Court has also concluded that the defendants have perfected their title to the suit schedule properties by adverse possession. But, the civil Court has completely ignored that the defendants had not pleaded the essentials to succeed on the ground of adverse possession, and there was no evidence in this regard. The civil Court failed to consider there was no evidence of the essentials of adverse possession viz., (a) the date on which they came into possession of the corresponding properties, (b) the length of their possession of the respective suit schedule properties, (c) their respective possession was open and undisturbed with the requisite animus to hold the property as the absolute owner. The learned counsel for the plaintiff relied upon the decision of the Hon'ble Supreme Court in P. Lakshmi Reddy v. L Lakshmi Reddy1, Dagadabai 1 AIR 1957 SC 314 26 (Dead) by LRs v. Abbas @ Gulab Rustum Pinjari2and the decision of the Madras High Court in K Vasanthi and another v. J Ramanathan and another3.
26. Per contra, the learned counsel for the defendants submitted that there cannot be an over emphasis on the adjudication in favour of the plaintiff in O.S.No.27/1981 culminating with the judgment of this Court in RSA.No.744/1992. The learned counsel emphasised that the dispute in O.S.No.27/1981 was confined to the declaration of status of the plaintiff as the legally wedded wife of Sri Ram Reddy and the grant of maintenance. In fact, the first Appellate Court in R.A. No.79/1983 has accepted that Sri Ram Reddy had transferred the properties that are subject matter of the present suit in favour of the defendants. However, the first appellate Court granted maintenance to the plaintiff under Section 28 of the Hindu Adoption and 2 (2017) 13 SCC 705 3 In Second Appeal (MD) No. 493 of 2016 and CMP (MD) No. 11177 of 2017 27 Maintenance Act, 1956 holding that such transfers would be subject to the plaintiff's right to maintenance as the legally wedded wife of Sri Ramreddy.
27. The learned counsel for the defendants next contended that Sri Ramreddy's evidence in O.S.No.27/1981 is consistent with his pleadings and the terms of the Will dated 04.03.1983. The pleadings in OS No. 27/1981 and the terms of the Will dated 04.03.1983 establish that Sri Ramreddy, being the absolute owner of the suit schedule properties, had divested himself of all rights, title and interest in the suit schedule properties in a manner known to law viz., family arrangements and gift. The oral arrangements are recognized transfers amongst Hindus, and that such transactions inter se Sri Ram Reddy and defendants were established by the entries in the Record of Rights. 28
28. Further, the learned counsel for the defendants refuted the canvass by the learned counsel for the plaintiff insofar as adverse possession placing reliance on the decision of Hon'ble Supreme Court in the case of Bassappa v. Puttappa4. The learned counsel contended that to succeed in the defence of adverse possession it would sufficient if the defendants categorically state that they have been in continuous possession and enjoyment of the property to the knowledge of the plaintiff openly, physically and continuously and adversely over a period of 12 years. The defendants don't have to specify the date on which they entered possession. As such, the defendants' pleadings, and evidence, in this regard is complete and adequate to sustain the plea of adverse possession.
29. Furthermore, the learned counsel also relied upon the decision of Hon'ble Supreme Court in the case 4 ILR 2002 KAR 3297 29 of Shri Bhimsehwara Swami Varu Temple vs. Pedapudi Krishnamurthy and Ors. reported in AIR 1973 SC 1299 to rebut the argument that revenue entries by themselves would not be material. The learned counsel submitted that, even if there are certain stray entries in the name of Sri Ram Reddy for a few years, they do not disturb the presumptive value of the other revenue entries. The learned counsel buttressed his argument in this regard stating that the entries in favour of defendant Nos.2 and 3 are constant and continuous in their favour. Therefore, the possession in terms of thereof is established. There are many entries in favour of Sri Ram Reddy insofar as the properties allotted to defendant No.1, but these entries, being stray entries and being in respect of Sri Ram Reddy and defendant No.1 who are married, cannot by themselves be of any significance.
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30. Though the learned counsel for the parties made dichotomous submissions on the effect of final adjudication in the suit in O.S.No.27/1981, the family arrangements and possession of the respective lands by these defendants in response to the Court's queries on common ground between the parties, they are in unison on the following:
(a) The finding that the plaintiff is one of the legally wedded wife of Sri Ram Reddy along with defendant No.1 is concluded with the decision of this court in RSA No. 744/1992,
(b) Sri Ram Reddy, being the sole surviving male co-parcenary, held the suit schedule properties as his absolute properties with right to deal with them in the manner deemed fit by him.
(c) The plaintiff would be entitled for a share only in those properties that Sri Ram Reddy held as the absolute owner as of the date of his demise.31
Further, the learned counsel submit that the dispute in the present appeal is because the plaintiff contends that Sri Ram Reddy continued as the owner in possession of the suit schedule properties even as on the date of his demise, and on his demise, she is entitled for half a share in the suit schedule properties because she is declared one of the legally wedded wives of Sri Ram Reddy along with the defendant No. 1. The defendants, on the other hand, contend that Sri Ram Reddy settled the suit schedule properties either in favour of the defendant No. 1 or the defendant No.2 or the defendant No.3; even if the transactions under the family arrangements in favour of the defendant No. 1 and 3 are not established and the gift in favour of the defendant No. 2 is invalid, the defendants, who were in continuous possession and enjoyment of the respective suit schedule properties for over a period of 12 years as of the date of the suit, have perfected their title to the suit schedule properties.
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31. The entire controversy about the family arrangement and delivery of possession of the corresponding suit schedule properties in favour of the defendant Nos. 1 and 3, as well as the purported gift in favour of the defendant No. 2, will have to be examined in the background of the dispute about the plaintiff's marital status and her claim for maintenance during the lifetime of Sri Ram Reddy. Sri Ram Reddy not only contested the plaintiff's marital status as his wife but also the obligation to pay maintenance asserting, amongst others, that he had settled the properties inherited by him in favour of the defendants and therefore he did not have sufficient means. The dispute about the plaintiff's marital status and her claim for maintenance is decided finally only on 17.7.1998 in RSA No. 744/1992. In the intervening time, the plaintiff, with the death of Sri Ram Reddy, has filed the present 33 suit asserting half a share in the schedule properties. This court in RSA No. 744/1992 has concluded thus:
"3. Even otherwise, I am satisfied that the courts below have come to the concurrent finding on a proper analysis of such documents produced thereunder. Therefore, I have no hesitation in holding that the plaintiff was the wife of diseased Ramareddy and entitled to maintenance as granted by the courts below together with the charge thereon of the property. A cross objection has been made by the second defendant- Padmamma who claims to be the sole wife to the exclusion of the plaintiff. This plea cannot be entertained for the simple reason with the finding of the Courts below that the marriage took place before 1955 and both are wives in the legal terms of the dictum. That finding also does not call for any interference as there is no contra evidence available. Therefore, confirming that Padmamma and Venketrama are the wives of the diseased Ramareddy and both of them are entitled to not only maintenance but also a right in the property in law, and confirming the decree of the maintenance in respect of Venketrama granting a 34 decree for maintenance of rupees per men sum, the second appeal is dismissed."5 The background of the dispute between the plaintiff and Sri Ram Reddy, and the decision RSA No. 744/1992, cannot be ignored while assessing the evidence on record. The civil court has not considered this background, and in the considered view of this court, the civil Court should not have ignored this background or the decision in RSA No. 744/1992.
32. The defendants have not challenged the findings by the civil Court that the alleged adoption of the defendant No. 3 by Sri Ram Reddy and defendant No. 1 is invalid, the Will dated 4.3.19 83 is not a testamentary document creating any interest by succession, and the Gift of the corresponding properties in favour of defendant No. 2 is not established. There is 5 The emphasis by underlining is by this Court 35 no dispute that the defendants are in possession of the corresponding suit schedule properties. The question is whether there is transfer of title to the corresponding suit schedule properties in favour of the defendants Nos.1 and 3 to the exclusion of the plaintiff. As such, it will have to be ascertained whether the defendant No. 1 and 3 are able to establish family arrangements and transfers in their favour pursuant to such family arrangement with delivery of possession of the corresponding properties. If they have not established such family arrangements and delivery of possession, have they established that they have perfected their title by adverse possession. Insofar as the defendant No. 2, who has not challenged the finding by the trial court that the gift in his favour was invalid, the question is whether he is able to establish that he has otherwise perfected title to the corresponding suit schedule properties by adverse possession. Therefore, the 36 following points for consideration are formulated for consideration:
(i) Whether Sri Ram Reddy had transferred the suit schedule properties under Family Arrangements in favour of the defendant No. 1 and 3 as contended by them and therefore, the plaintiff is not entitled for any relief, and
(ii) Whether the defendants had perfected title to the corresponding suit Schedule properties by way of adverse possession as of the date of the suit.
33. In the light of the common submissions as recorded supra, the onus of establishing family arrangements would be on the defendant No. 1 and 3. It is undisputedly their case that the plaintiff, though declared to be one of the wives of Sri Ram Reddy and entitled to the rights in the properties, would not be entitled for a share or possession because Sri Ram Reddy had transferred the corresponding suit schedule 37 properties in their favour under two family arrangements, the plaintiff would not be entitled to any right in these properties. The defendant No. 1 and 3 to substantiate their case rely upon (a) the pleadings in OS No. 27/1981 and terms of the Will dated 4.3.1983 affirming the transfer of the corresponding suit schedule properties in their favour, (b) revenue entries for the corresponding suit schedule properties in their favour and (c) oral testimony of the neighbouring owners who have stated that these defendants are in possession of the corresponding schedule properties as absolute owners.
34. The civil Court has accepted the revenue entries as proof of family arrangements in favour of defendant No. 1 and 3 because Sri Ram Reddy had made the necessary application with the authorities for entries in the Record of Rights in favour of the defendant No. 1 and 3. Sri Ram Reddy not only pleaded 38 about such family arrangements in the earlier suit in OS No. 27/1981 but also executed the Will dated 4.3.1983 affirming such family arrangements. Though the Will dated 4.3.1983 is not proved as testament, it is proved as an agreement and therefore, evidences family arrangements as asserted by defendants. However, as observed supra, the pleadings in OS No. 27/1981 and the terms of the Will dated 4.3.1983 will have to be examined in the context of the earlier dispute that was pending consideration even as of the date of demise of Sri Ram Reddy. In the earlier proceedings there was not only an effort to deny the marital status of the plaintiff with Sri Ram Reddy, but also an effort to deny the liability to pay maintenance on the ground that Sri Ram Reddy did not have the resources to pay maintenance because of the asserted transfers in favour of the defendants. When so considered, the evidentiary value of these two circumstances viz., the pleading in OS No. 27/1981 and the Will dated 4.3.1983 as proof of 39 transfers in favour of the defendants would be substantially diminished. The acceptance of the Will dated 4.3.1983 as an agreement is artificial, and it was nobody's case that it should be treated as such.
35. The defendant No. 1 and 3 rely upon the entry/ies in the Record of Rights their favour to establish family arrangements. It is settled that revenue entries by themselves are not proof of title to immovable properties6, and even otherwise the entries in Record of Rights would only be of presumptive assistance in view of the provisions of section 133 of the Karnataka Land Revenue Act, 1964. If the presumption from the entries in the Record of Rights are to prevail, they will have to be consistent, unequivocal and corroborated by credible evidence. But, it is undisputed, as per the Record of Rights, that Sri Ram Reddy is intermittently shown as the occupant of the properties claimed by the defendant 6 Premnath Khanna and others v. Narinder Nath Kapoor (Dead) through LRs and other (2016)) 12 SCC 235 40 No. 1 and 3 even after the date of the family arrangements asserted by them. The contention that not much could be made of the intermittent entries in the Record of Rights because of the relationship between Sri Ram Reddy and the defendant No. 1 and 3 is counter-productive. The entries in the Record of Rights in favour of Sri Ram Reddy, albeit intermittent, could also establish he was in possession of the subject properties because he had not parted title thereto as claimed by the defendants. The civil Court, which positively concluded that the Will dated 4.3.1983 is not a testamentary document, could not have ignored the entries in the revenue records were intermittently in favour of Sri. Ram Reddy, nor over emphasized the significance of revenue entries in accepting the family arrangements as asserted by defendant No. 1 and 3. Further, the witnesses who have spoken about the defendants being in possession of the corresponding properties, have not spoken about the details of the 41 family arrangements viz., the date thereof or the panchas in whose presence such family arrangements were discussed and agreed upon, or the reason for family arrangements. A cumulative reading of the evidence does not establish the family arrangements as asserted by the defendant No. 1 and 3.
36. Therefore, this court is of the considered view that the defendant No. 1 and 3 have not been able to establish the family arrangements in their favour based either on the pleadings in OS No. 27/1981 or the terms of the Will dated 4.3.1983 or the inconsistent entries in Record of Rights in their favour. The civil Court has erred in concluding that the defendant No. 1 and 3 are able to establish family arrangements as asserted by them. As such, unless the defendants are able to establish that they have perfected title to the suit schedule properties by adverse possession, the plaintiff would be entitled for a share in the corresponding suit 42 schedule properties along with the defendant No. 1 in terms of the judgment and decree as confirmed in RSA No. 744/1992. The defendant No. 2, in any event, will have to succeed only on the plea of adverse possession.
37. The Hon'ble Supreme Court in PT Munichikanna Reddy and others vs. Revamma and others7 has held that a two pronged enquiry is required to assess a claim of adverse possession, and those two prongs are:
"(i) Application of the provisions of the Limitation Act to examine jurisprudentially wilful neglect on the part of the owner, as successful application of the relevant provisions of the Limitation would distance the title of the land from the owner, and
(ii) Specific positive intention to dispossess the owner on the part of the adverse possessor. If the intent to dispossess in the adverse possessor is established, the title effectively 7 (2007) 6 SCC Page 59 43 shifts from the already distanced owner to the adverse possessor."
Insofar as the first enquiry of applying the provisions of the Limitation Act, 1963 to jurisprudentially examine whether the plaintiff had lost title to the properties by wilful neglect, the civil Court has examined separately whether the suit was barred individually against each of the defendants.
38. As regards the defendant No. 1 and 3, the civil Court has concluded that it is established that Sri Ram Reddy had delivered possession of the corresponding suit schedule properties in their favour under unchallenged family arrangements in 1969 and prior thereto. These defendants were in possession of the corresponding suit schedule properties in their own rights for over 12 years as of the date of the suit. Sri Ram Reddy excluded himself from the possession of the suit schedule property with these family arrangements. 44 He did not bring in an action within 12 years from the year 1969. Therefore, under Article 110 of the Limitation Act, 1963, the right to challenge the family arrangements was lost to Sri Ram Reddy, and when such right was lost to Sri Ram Reddy, the plaintiff, who was claiming rights to the properties by succession after his demise, could not have filed such suit. As such, the suit against the defendant No. 1 and 3 was barred by limitation.
39. As regards, the defendant No. 2, the civil Court has concluded that the Will dated 4.3.1983 and the revenue records establish that defendant No. 2 was put in possession of the corresponding suit schedule properties, 'on any one day in the year 1973', and even if the period of 12 years is computed from June 1973, the 12 year period expired by the end of June 1985. The suit is filed in the month of November 1985. Therefore the suit as against defendant No. 2 is barred under 45 section 65 of the Limitation Act, 1963. Further, the civil Court has also concluded that even if it could be said that a transferee enters possession of a property under an invalid transfer, the transferee's possession would prime facie become hostile to the claim of the real owner, and on completion of 12 years of continuous possession the transferee acquires title to the subject properties by adverse possession. Therefore, even if the defendant No. 2 entered possession of the corresponding suit schedule properties under an invalid i.e., unregistered gift, his possession prime facie was adverse to the plaintiff's claim, and the defendant No. 2 on completion of 12 years in possession acquires absolute title to the corresponding suit schedule property. As such, the defendant No. 2 was able to establish adverse possession.
40. The finding that the suit against the defendant No. 1 and 3 is barred by law is premised in 46 the finding that Sri Ram Reddy had settled the corresponding suit schedule properties in their favour in the year 1969 and prior thereto. However, as already discussed the defendants have not established the family arrangements. If the family arrangements are not established, neither the premise that Sri Ram Reddy had divested himself of the rights to the corresponding suit schedule properties nor the premise that he had himself lost the right to challenge such transfers in view of the provisions of Article 110 of the Limitation Act, 1963 would be available. Therefore, the plaintiff's suit could not have been dismissed as against the corresponding suit schedule properties claimed by these defendants on this ground.
41. It is settled that the plea of adverse possession is not a pure question of law but a blend of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into 47 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 undisturbed8. Further, it is settled that a person pleading adverse possession has no equities in his favour, and because he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all the facts necessary to demonstrate adverse possession.9 It follows from these settled propositions that the person who sets up adverse possession must plead the aforesaid essentials to succeed on the plea of adverse possession. It is again undisputed that the defendants i.e., the defendants 1 to 3 have not pleaded the date they entered into possession of the corresponding suit schedule properties. There is also no evidence in this regard. Further, in the undisputed facts and 8 Karnataka Board of Wakf v. Government of India (2004) 10 SCC 779 9 Mahesh Chand Sharma v. Raj Kumari Sharma (1996) 8 SCC 128 48 circumstances of the case, it is imperative for the defendants to plead and establish that their possession of the respective suit schedule properties was undisturbed for the requisite number of 12 years from a specific date prior to the date of the initiation of the suit in OS No.27/1981 to succeed in their plea of adverse possession. This would be the significance of the requirements of nec vi, nec clam, nec precario which encapsulate the ingredients of a plea of adverse possession as delineated by the Hon'ble Supreme Court in Karnataka Board of Wakf versus Government of India supra. The civil Court could not have ignored that Sri. Ram Reddy contested the plaintiff's claim for maintenance inter alia on the ground that he had transferred the suit schedule properties claimed by the defendants and as such he did not have the resources to pay maintenance to the plaintiff. But, the plaintiff contested this defense. In the light of these conflicting cases, this Court in RSA No. 744/1992 has declared 49 that the plaintiff would also be entitled to maintenance and property rights. These circumstance bespeak of a contentious possession by the defendants as against open and undisturbed possession, an essential ingredient of a successful plea of adverse possession. Therefore, the defendants cannot succeed even insofar as the plea of adverse possession.
For the foregoing reasons, the points for consideration are answered in favour of the plaintiff. It is concluded that the defendants have not been able to establish the transfer of the correspondent suit schedule properties in their favour, and further, it is concluded that the defendants have also not succeeded in establishing their case of adverse plea. Consequentially, the impugned judgment and decree by the civil Court is modified declaring that the plaintiff is entitled for ½ share in the suit schedule 'A' in item Nos.1 to 11 properties. However, no interference is 50 called for with regard to the finding by the civil Court as regards the other suit schedule properties. As such, the plaintiff will also be entitled for half a share in the property in house No.2-40 of Madakal Taluk, Sedam (Suit Schedule item No.13) as decreed by the civil Court. The plaintiff, therefore, would be entitled for her half a share in the aforesaid properties by metes and bounds. In the facts and circumstances of the case discussed in detail, this Court is of the considered view that there need not be an order for mesne profits. As such, the following order:
a) The appeal in RFA No.680/2005 is allowed in part, and the judgment and decree dated 25.02.2005 in O.S.No.328/2002 on the file of the Civil Judge (Senior Division), Sedam, is modified declaring that the appellant - plaintiff in O.S.No.328/2002 is entitled for half a share in the suit schedule 'A' item No.1 to 11 properties as well as for half a share in the suit schedule item No.13 property with 51 separate possession thereof by metes and bounds. The office is directed to draw preliminary decree accordingly. No costs.
Sd/-
JUDGE KJJ/LG/RSP/BL