Karnataka High Court
Dr M Namassivaya S/O Late M Kadirappa vs D F Selvaraj S/O C R S Das on 8 April, 2022
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF APRIL, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.F.A.NO.1738 OF 2005 (INJ)
BETWEEN:
DR. M. NAMASSIVAYA
S/O LATE M KADIRAPPA
SINCE DECEASED BY HIS LRS
1. N.D. SADHAKA
AGED ABOUT 63 YEARS
2. N SHRAYATHI
AGED ABOUT 61 YEARS
3. N SUMITHRA
AGED ABOUT 59 YEARS
4. N SUCHINTHAKA
AGED ABOUT 52 YEARS
5. N NAGARAJU
AGED ABOUT 44 YEARS
6. N. VIDYARTHI
AGED ABOUT 57 YEARS
7. N BHARATHI
AGED ABOUT 55 YEARS
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8. N NAGARANI
AGED ABOUT 51 YEARS
9. N SUJATHA
AGED ABOUT 49 YEARS
10. N NALINI JAYANTHI
AGED ABOUT 46 YEARS
11. N DEVAYANI
AGED ABOUT 37 YEARS
12. N ARUNDATHI
AGED ABOUT 42 YEARS
13. N NITHYANANDINI
AGED ABOUT 38 YEARS
14. VENKATAMMA NAMASSIVAYAA
W/O LATE DR M.NAMASSIVAYA
AGED ABOUT 81 YEARS
NO.1 TO 13 ARE CHILDREN OF
LATE DR.M.NAMASSIVAYA
NO.2 TO 14 ARE REP.BY THEIR PA HOLDER
MR.N.D.SADHAKA, NO.(1)HEREIN
AND R/AT NO.4, OBALAPPA GARDEN,
K.R.ROAD, YEDIYUR POST,
BANGALORE-560 082.
...APPELLANTS
(BY SRI.S SHAKER SHETTY, ADVOCATE)
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AND:
1. D F SELVARAJ
S/O C R S DAS
MAJOR
2. S VASANTHA MARY
W/O D F SELVARAJ
AGED ABOUT 43 YEARS
BOTH ARE R/AT NO.52, 24TH 'A' CROSS
BSK II STAGE, BANGALORE-560 070
...RESPONDENTS
(BY SRI.G.L.VISHWANATH, SR.COUNSEL FOR
SMT.MANASA.B.RAO, ADVOCATE FOR R1 & R2)
THIS RFA IS FILED U/S.96 OF CPC AGAINST THE JUDGMENT
AND DECREE DT.23.8.2005 PASSED IN O.S.NO.10861/93 ON THE
FILE OF THE XXVIII ADDL. CITY CIVIL JUDGE, MAYOHALL UNIT,
BANGALORE, DISMISSING THE SUIT FOR DECLARATION AND
PERMANENT INJUNCTION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 14.03.2022, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
The captioned Regular First Appeal is filed by the legal representatives of the original plaintiff questioning the judgment and decree passed in O.S.No.10861/1993 wherein the suit filed seeking relief of declaration and consequential relief of injunction is dismissed.
2. For the sake of convenience, the parties are referred to as per their rank before the Court below.
3. The facts leading to the case are as under:
The subject matter of the suit is land bearing Sy.No.56 measuring 1 acre 10 guntas. The original plaintiff namely Dr.M.Namassivaya claimed title on the basis of registered sale deed executed by the original owner K.N.Narasinga Rao on 17.07.1970. The plaintiff contends that he purchased the suit schedule property for formation of a nursery and claims that he has fenced the suit schedule property. Plaintiff further 5 contends that he is running a nursery by name and style 'Nandini Nursery'. The plaintiff is basing his title and claims that he is in exclusive possession and enjoyment over the suit schedule property.
4. The plaintiff further contended that one Dayananda claiming to be the son of one Kenchappa and owner of 15 guntas of land in Sy.No.56 instituted a suit against the present plaintiff in O.S.No.505/1989. The plaintiff further contends that said Dayananda got the said suit dismissed as not pressed on 05.03.1992. Plaintiff further contended that the present defendant Nos.1 and 2 are claiming to be purchasers of the property which was the subject matter of the suit in O.S.No.505/1989. The plaintiff further specifically disputed the identity of property claimed by defendants. The plaintiff specifically contended that except suit schedule property, there is no landed property on the western and southern side of the suit schedule property. The said boundaries are 6 abutting to road and the said roads are in existence since 1976.
5. The present suit is filed by specifically alleging that on 20.08.1993, the defendants tried to trespass over the suit schedule property and tried to remove the fence and therefore, claims that he was compelled to file the present suit seeking relief of declaration and for consequential relief of injunction. The plaintiff also asserted that he has perfected his title over schedule 'B' property by way of adverse possession.
6. On receipt of summons, the defendants tendered appearance and contested the suit by filing written statement. The defendants stoutly denied the entire averments made in the plaint. The defendants specifically contended that 15 guntas of land in Sy.No.56 which is in the western portion of Sy.No.56 was purchased by them under two registered sale deeds dated 01.07.1991 and 07.10.1993 from one 7 Dayananda. The defendants specifically pleaded that their vendor Dayananda purchased 15 guntas of land from one Kenchappa @ Narappa under registered sale deed dated 07.12.1972. At paragraph 19(A), the defendants specifically narrate the flow of title from the original owner Nagappa @ Papaiah. At paragraph 19(C), the defendants further specifically contended that the first title deed would clearly indicate that Sy.No.56 measures only 1 acre 5 guntas and therefore, the sale deed executed by Chikka Kenchappa in favour of Muniyappa Reddy indicating alienation in respect of 1.05 acres does not confer any title to an extent of 1 acre 5 guntas on Muniyappa Reddy and therefore, the subsequent sale deeds executed by Muniyappa Reddy in favour of K.N.Narasinga Rao and consequently in favour of plaintiff in respect of above said extent does not confer title to an extent of 1 acre 10 guntas as claimed by the present plaintiff in the present suit. The defendants also specifically claimed that after purchase of 15 guntas on the western side of the suit 8 schedule property, the land bearing Sy.No.56 has undergone sub-division and the portion purchased by the defendants is assigned Sy.No.56/1 and remaining eastern portion which is purchased by plaintiff subsequently is assigned Sy.No.56/2.
7. The defendants referring to various mutation extracts and Aakarbandh issued by the Department of land records specifically contended that plaintiff cannot claim title over schedule 'B' property as they are the owners only to an extent of 35 guntas in Sy.No.56/2 and therefore, strongly resisted the suit and prayed for dismissal of the suit. The defendants also filed additional written statement and specifically claimed that defendants are in exclusive possession and running a nursery in the name and style of 'V.K.Nursery' and they have started granite and stone slabs in schedule 'B' property.
8. Based on the rival contentions, the Trial Court formulated the following issues:
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"1) Whether the plaintiffs prove their lawful possession on the suit schedule property as on the date of filing of the suit and earlier to it?
2) Whether the plaintiffs prove the alleged interference by the defendants with their possession of the suit property?
3) Whether the plaintiffs are entitled to the relief of permanent injunction?
4) What order or decree?
Additional issues framed on 20.02.2001:
1) Whether the plaintiff proves that identity of suit property is clear?
2) Whether the plaintiff proves that he is the owner of schedule A property measuring 1 acre 10 guntas?
3) Whether the plaintiff proves that he has acquired the title to schedule B property by adverse possession?
4) Whether the plaintiff is entitled to the relief of declaration sought?"
9. The plaintiffs in support of their contention examined plaintiff No.1 as PW.1 and examined two independent witnesses as PWs.2 and 3 and relied on 10 documentary evidence vide Exs.P-1 to P-61. The defendants to counter the claim of plaintiffs, examined defendant No.1 as DW.1 and relied on rebuttal documentary evidence vide Exs.D-1 to D-53.
10. The Trial Court having assessed ocular and documentary evidence answered additional issue No.2 in the negative by holding that plaintiffs have failed to prove that they are the owners of schedule 'A' property measuring 1 acre 10 guntas. Consequently, additional issue No.3 was also answered in the negative by recording a categorical finding that plaintiffs have failed to prove that they have perfected their title to schedule 'B' property by way of adverse possession. While answering issue Nos.1 and 2 in negative, Trial Court has recorded a categorical finding that plaintiffs have failed to prove their lawful possession over suit schedule 'B' property and alleged interference is not proved. 11
11. The learned judge while examining the material on record has recorded a categorical finding that Sy.No.56 measures only 1 acre 10 guntas. The learned Judge was of the view that if Nagappa @ Papaiah who was the original owner alienated 15 guntas in favour of one Chikka Kenchappa, the second sale deed in respect of remaining portion which measured only 35 guntas, the said Nagappa could have transferred only 35 guntas and not 1 acre 5 guntas as reflected in the sale deed executed in favour of Muniyappa Reddy vide Ex.P-20. The learned Judge has also taken judicial note of the fact that Muniyappa Reddy has gone to the extent of selling 1 acre 10 guntas in favour of Narasinga Rao under registered sale deed dated 20.04.1960 as per Ex.P-22.
12. The plaintiffs are claming title on the basis of sale deed executed by Narasinga Rao in their favour. The fact that Kenchappa who has purchased 15 guntas at the earliest point of time who in-turn sold to one Dayananda is admitted by PW.1. The learned judge having referred to the title 12 documents and having found discrepancies in regard to measurement in the subsequent title documents has arrived at a conclusion that plaintiffs cannot assert and claim title over Sy.No.56 measuring 1 acre 10 guntas. The Trial Court was also of the view that though plaintiffs have made an attempt in asserting that they have perfected their title in respect of property owned by present defendants which is referred as schedule 'B' property has negatived the said contention for want of pleadings in regard to plea of adverse possession. On these set of reasonings, Trial Court has proceeded to dismiss the suit.
13. Learned counsel appearing for the appellants/plaintiffs reiterating the grounds urged in the appeal memo would strenuously argue and contend that the clinching evidence on record adduced by plaintiffs would clearly establish the physical possession of plaintiffs over the suit property since 1970 and the same is evident from the registered sale deed as per Ex.P-15. He would further contend 13 that to establish lawful possession, plaintiffs have produced revenue records and therefore, would contend that plaintiffs have discharged their initial burden. Learned counsel would further take this Court to Exs.P-37 and P-38 which is a copy of plaint in O.S.No.505/1989, wherein the present defendant's vendor namely Dayananda has admitted in unequivocal terms that the present plaintiffs are in possession and they have fenced the entire extent measuring 1 acre 10 guntas. He has placed reliance on paragraphs 5 and 6 of the plaint filed in O.S.No.505/1989. He would further contend that the learned Judge erred in declining to accept the claim made by the plaintiffs by relying on Exs.P-43 and P-44. He would seriously dispute the phodi proceedings pertaining to Sy.No.56. Countering the evidentiary value of Exs.P-43 and P-44 which are the sale deeds, learned counsel would contend that the sub-division in Sy.No.56 based on the sale deeds vide Exs.P-43 and P-44 is behind the back of plaintiffs and therefore, he would seriously dispute the phodi proceedings 14 conducted by the authorities and therefore, would contend that the phodi proceedings have no evidentiary value at all. He would contend that when plaintiffs are in exclusive possession of entire extent, question of effecting phodi would not arise.
14. To buttress his arguments as to how plaintiffs are entitled for perpetual injunction, he would place reliance on the judgment of the Hon'ble Apex Court rendered in the case of Nagindas Ramdas vs. Dalpatram Ichharam alias Brijram and others1 and would contend that if admissions are found to be true and clear, are by far the best proof of the facts admitted. He would contend that the Hon'ble Apex Court was of the view that admissions in pleadings or judicial admissions made by the parties or their agents stand on a higher footing than evidentiary admissions. Therefore, he would contend that former class of admissions are fully binding on the party that makes them and constitute a waiver 1 (1974) 1 SCC 242 15 of proof. He would further contend that the material on record clearly indicates that plaintiffs are in exclusive possession since 1970 and therefore, contends that plaintiffs have acquired title by prescription. He would place reliance on the judgment of the Hon'ble Apex Court rendered in the case of Manchegowda vs. State of Karnataka & Others2 and would take this Court to paragraph 24 of the said judgment.
15. Learned counsel would also place reliance on the judgment rendered in the case of Rame Gowda (Dead) by LRs. vs. M.Varadappa Naidu (Dead) by LRs. and Another3. Relying on this judgment, he would contend that the clinching evidence on record would clearly establish that plaintiffs are in settled possession and therefore, their possession has to be protected under Section 6 of Specific Relief Act, 1963. Learned counsel has further placed reliance on the judgment rendered by the Hon'ble Apex Court in the case of State of West Bengal vs. The Dalhousie Institute 2 AIR 1984 SC 1151 3 (2004) 1 SCC 769 16 Society4. Placing reliance on the principles laid down in the said judgment, he would contend that plaintiffs are in open and uninterrupted continuous possession and the same is admitted by defendants' vendor Dayananda and therefore, would contend that the material on record would clearly indicate that plaintiffs have perfected their title by way of adverse possession. Learned counsel has also placed reliance on the following judgments:
1) The Khadya Peya Vikarate Malka Sangh vs. The Chief Officer, Sangli Municipal Council and Another - AIR 1977 SC 527;
2) State of Punjab and Others vs. Dr. R.N.Bhatnagar and Another - AIR 1999 SC 647;
3) Bondar Singh and Others vs. Nihal Singh and Others - (2003) 4 SCC 161;
4) Vinod Kumar vs. Gangadhar - (2015) 1 SCC 391;
5) Anathula Sudhakar vs. P.Buchi Reddy (Dead) by LRs.
and Others - (2008) 4 SCC 594.
4 AIR 1970 SC 1778 17
16. On these set of grounds, learned counsel would contend that the judgment and decree of the Court below is palpably erroneous, contrary to clinching evidence on record and therefore, warrants interference at the hands of this Court.
17. Per contra, learned Senior Counsel repelling the arguments canvassed by the learned counsel for appellants/plaintiffs would, however, support the reasons and conclusions arrived by the learned Judge. He would strenuously argue and contend that the claim made by plaintiffs in the present suit is frivolous. The entire controversy which has led to the present litigation revolves around the extent of the land bearing Sy.No.56. Taking this Court to Schedule 'A' of the property, learned Senior Counsel would bring to the notice of this Court that plaintiffs claim that Sy.No.56 measures 1 acre 10 guntas and in the said portion, plaintiffs claim title on the basis of registered sale deed executed by original owner K.N.Narasinga Rao dated 18 17.07.1970. Then he would take this Court to the further examination-in-chief of plaintiff duly sworn on 07.09.2001. Referring to the averments made in the examination-in-chief, learned Senior Counsel would bring to the notice of this Court that plaintiff claims that Sy.No.56 measures 1 acre 20 guntas. In further examination-in-chief, the plaintiff has further stated that after formation of road, the entire property in Sy.No.56 measures 1 acre 10 guntas and the plaintiff claims that his father was in occupation of 1 acre 10 guntas. Placing reliance on these significant details, he would contend that plaintiff himself is not sure in regard to the exact extent of land bearing Sy.No.56.
18. Learned Senior Counsel would then take this Court to the findings recorded by the Trial Court on issue Nos.1 and 2 and additional issue Nos.1 and 2. Taking this Court through the findings recoded by the Trial Court, he would contend that the Trial Court having meticulously examined the title documents has recorded a categorical finding that Sy.No.56 19 measures only 1 acre 10 guntas and if Nagappa @ Papaiah sold 15 guntas to one Chikka Kenchappa, then Nagappa could have only sold 35 guntas in favour of one Munireddy who in turn sold to Narasinga Rao under whom the present plaintiffs are claiming title. Therefore, he would contend that the learned Judge has dealt with all these significant details and has rightly dismissed the suit. He would also take this Court to the rebuttal evidence led in by defendants. Placing reliance on Exs.D-1 and D-2, he would vehemently argue and contend before this Court that there is a sub-division is Sy.No.56 which is well within the knowledge of the plaintiffs and therefore, the plaintiffs are not entitled for discretionary relief of perpetual injunction as they have filed the present suit by suppressing the sub-division which is evident from Exs.D-1 and D-2. To corroborate the sub-division, he would also place reliance on Ex.D-3 Aakarbandh and Ex.D-4 which is a Tippani sketch. He would further contend that Ex.D-7 would clinch the issue. Placing reliance on Ex.D-7, he would contend that in terms of 20 sub-division, mutation is effected indicating that property purchased by plaintiffs measures only 35 guntas and Ex.D-7 is given effect to in the record of rights which is evident from Ex.D-18. He would further take this Court to Ex.D-14 which is record of rights pertaining to Sy.No.56/1 measuring 15 guntas and would contend that schedule 'B' property in respect of which the plaintiffs are asserting title by way of adverse possession is not at all in possession of plaintiffs.
19. Learned Senior Counsel has further placed reliance on Exs.D-23 to D-27, Exs.D-28 to D-33 which are the telephone bills and electricity bills respectively, Ex.D-34 KST certificate and would contend before this Court that it is the defendants who are in physical possession of schedule 'B' property measuring 15 guntas. He would further contend that plaintiffs having approached the Court, have not at all produced any revenue records to indicate that they are in possession of the property as on the date of filing of the suit. He would also lay emphasis on the fact that plaintiffs have 21 only disputed the documents produced by defendants at Exs.D-23 to D-36. He would further contend that the rebuttal evidence adduced by the defendants at Exs.D-37 to D-53 is not at all disputed. He also countered the contention of learned counsel for appellants/plaintiffs that possession was not delivered by Dayananda under Exs.P-43 and P-44. He would submit that this submission is factually incorrect and contrary to paragraph 5 of the recitals in both the sale deeds. On these set of grounds, he would submit to this Court that appeal is devoid of merits and same is liable to be dismissed.
20. Heard the learned counsel for the appellants/plaintiffs and learned Senior counsel for the respondents/defendants. Perused the Trial Court records. The following points would arise for consideration:
1) Whether the finding of the Trial Court that plaintiffs have failed to prove their lawful possession as on the date of filing of the suit is palpably erroneous and contrary to clinching evidence on record?22
2) Whether the finding of the Trial Court that plaintiffs have failed to prove that they are the owner of schedule 'A' property measuring 1 acre 10 guntas is palpably erroneous?
3) Whether the Trial Court was justified in holding that plaintiffs have failed to prove that they have perfected their title to schedule 'B' property by way of adverse possession?
Re: Point Nos.1 and 2:
21. The plaintiff is asserting title in Sy.No.56 measuring 1 acre 10 guntas on the basis of registered sale deed executed by the original owner namely K.N.Narasinga Rao in favour of plaintiff's father under registered sale deed dated 17.07.1970 as per Ex.P-15 whereas defendants are asserting right and title to an extent of 15 guntas in Sy.No.56.
22. To resolve the controversy between the parties effectively, this Court has to examine the alienations in favour of plaintiffs and the flow of title and also alienation in favour of defendants. 15 guntas in Sy.No.56 was alienated at the 23 earliest point of time and this 15 guntas is the subject matter of the suit. It is not in dispute that one Nagappa @ Papaiah was the original owner of land bearing Sy.No.56. Under Ex.P-17, the said Nagappa @ Papaiah sold 1 acre 5 guntas in favour of one Ramaiah. The said Ramaiah in-turn re-conveys land bearing Sy.No.56 in favour of Nagappa under registered sale deed dated 26.11.1956 as per Ex.P-18. The said Nagappa again alienates 15 guntas of land in Sy.No.56 in favour of Chikka Kenchappa as per Ex.P-19. Therefore, the sale made by Nagappa on 21.01.1957 to an extent of 15 guntas would be the deciding factor. This would be a deciding factor because Nagappa has sold 15 guntas in favour of Chikka Kenchappa on 21.01.1957 as per Ex.P-19. Defendants are asserting and claiming title in respect of this 15 guntas. This 15 guntas was again in-turn sold by Chikka Kenchappa in favour of Kenchappa @ Narappa under Ex.P-21 under registered sale deed dated 07.10.1959. The said Narappa sold 15 guntas under registered sale deed dated 04.08.1960 in 24 favour of one Narasinga Rao as per Ex.P-23. The said Narasinga Rao again re-conveyed 15 guntas in favour of Kenchappa @ Narappa who again sold it to one Dayananda under registered sale deed dated 07.12.1972 as per Ex.P-25. The said Dayananda under two sale deeds has sold this 15 guntas in favour of defendants. The said Dayananda has sold 13 guntas of land in favour of defendants under registered sale deed dated 01.07.1991 as per Ex.P-43 and remaining 2 guntas was sold in favour of defendant No.1 under registered sale deed dated 07.10.1993 as per Ex.P-44.
23. These title documents would clearly indicate that 15 guntas was sold at the earliest point of time in Sy.No.56 totally measuring 1 acre 5 guntas. Therefore, the claim of plaintiffs that Sy.No.56 measures 1 acre 20 guntas or 1 acre 10 guntas would be of no consequence insofar as title of defendants to an extent of 15 guntas is concerned. The remaining portion in Sy.No.56 was sold by Nagappa @ Papaiah in favour of one Muniyappa Reddy. In the said sale deed as 25 per Ex.P-20 which is dated 26.06.1957, the extent is shown as 1 acre 5 guntas. At this juncture, it would be also relevant that the western boundary in this sale deed is shown as land of Kenchappa who is the predecessor in title of defendants relating to 15 guntas in Sy.No.56 which is the schedule 'B' property. If 15 guntas was already sold by the original owner Nagappa @ Papaiah, then it is clearly evident that Nagappa could not have sold in excess of 35 guntas.
24. The extent which is purchased by plaintiffs in the remaining portion needs to be examined in the context of the sale deed executed by Muniyappa Reddy in favour of K.N.Narasinga Rao. Under Ex.P-20, Muniyappa Reddy has purchased 1 acre 5 guntas, but while selling the said portion to K.N.Narasinga Rao, the extent is shown as 1 acre 10 guntas which is evident from Ex.P-22 which is the registered sale deed dated 20.04.1960. Therefore, on meticulous examination of the title documents pertaining to plaintiffs i.e., Exs.P-19, P-20 and P-22 would clearly indicate that the extent 26 in the registered sale deeds has gone on varying and these title documents are inconsistent with Ex.P-19 which was the first alienation done by the original owner i.e., Nagappa @ Papaiah. In Ex.P-19, the original owner Nagappa has clearly shown that Sy.No.56 measures 1 acre 9 guntas. Therefore, if 15 guntas was sold by Nagappa in favour of Chikka @ Kenchappa under registered sale deed dated 21.01.1957, then plaintiffs cannot assert title and possession to an extent of 1 acre 10 guntas.
25. The plaintiffs are banking heavily on alleged admission given by defendants' vendor Dayananda in O.S.No.505/1989. This Court has to examine whether the alleged admission given by defendants' vendor is conclusive and would bind the subsequent transferees i.e., the present defendants herein. It is a trite law that an admission made by a party to the suit in an earlier proceedings is admissible against him. Therefore, the question as to whether the alleged admission made by defendants vendor in 27 O.S.No.505/1989 would also bind the present defendants also needs to be examined by this Court. This Court has to examine as to whether the alleged admission made in a bare suit for injunction by defendants vendor is a relevant factor and whether this Court is bound to take notice thereof for arriving at a decision on the basis of the said alleged admission with other materials which is brought on record by the defendants. If the provisions of Section 58 of Indian Evidence At is taken into consideration, the alleged pleadings by defendants vendor would not bind the defendants as the same cannot be taken in aid for determination of the dispute in regard to lawful possession of plaintiffs. The defendants by leading rebuttal evidence have succeeded in controverting not only the alleged pleadings in O.S.No.505/1989 but also the claim made by plaintiffs. The rebuttal evidence led in by defendants would outweigh the slender evidence which is placed on record by the plaintiffs.
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26. The rebuttal evidence at Exs.D-1 and D-2 clearly indicates that Sy.No.56 has undergone sub-division. The property purchased by defendants is assigned Sy.No.56/1 measuring 13 guntas and the same is evident from Ex.D-1. The remaining portion which is purchased by plaintiffs is assigned Sy.No.56/2 and the same is evident from Ex.D-2. Ex.D-4 which is the sketch also depicts the sub-division in Sy.No.56. Ex.D-7 which is the mutation would clinch the issue and clearly indicate that in Sy.No.56 only 35 guntas is available. Ex.D-18 is the record of rights pertaining to Sy.No.56/2 and the same measures only 35 guntas whereas Ex.D-14 is the record of rights pertaining to Sy.No.56/1 and the same measures 15 guntas. Ex.D-8 would clearly clinch the entire controversy between the parties. In Ex.D-8, the extent of Sy.No.56/2 has undergone correction and in place 1 acre 10 guntas, the measurement is shown as 35 guntas.
27. What emerges from this rebuttal evidence is that plaintiffs have suppressed all these revenue documents and 29 have filed the present suit by depicting that Sy.No.56 as one compact survey number. Therefore, the admission, if any, given by defendants' vendor is properly explained and having regard to the nature of dispute and the rebuttal evidence led in by defendants would clearly establish that there is a scope for defendants to offer an explanation and this Court would not hesitate to hold that defendants have succeeded in offering an explanation by leading rebuttal evidence.
28. As rightly pointed out by learned Senior Counsel, the plaintiffs are themselves not sure of their case. The extent claimed in Sy.No.56 is inconsistent in the plaint as well as during trial. The defendants have produced voluminous rebuttal evidence which not only establishes their peaceful possession over 15 guntas in schedule 'B' property, but the rebuttal evidence would clearly disprove the claim made by plaintiffs in respect of schedule 'B' property. For reasons best known to plaintiffs, there is no serious challenge to the rebuttal evidence. To prove actual possession, defendants 30 have produced several documents. Ex.D-22 would also falsify the theory set up by plaintiffs that 10 guntas was acquired by the Housing Society. Ex.D-22 is the endorsement issued by the authority which clearly indicates that no land is acquired in Sy.No.56.
29. The material on record as pointed out by the learned Senior Counsel appearing for defendants would clearly establish that the plaintiffs have not come to Court with clean hands. The rebuttal evidence clearly indicates that plaintiffs have acquired right and title only in respect of 35 guntas. This Court has elaborately discussed in the preceding paragraphs in regard to the extent retained by the original owner Nagappa after he sold 15 guntas on the western side of Sy.No.56 to Chikka @ Kenchappa under registered sale deed dated 21.01.1957. The present defendants are asserting title and possession over this 15 guntas of land which is referred as schedule 'B' property. Therefore, defendants have not only succeeded in establishing that they are in exclusive possession 31 of 15 guntas of land in terms of registered sale deed but they have also succeeded in proving that Nagappa @ Papaiah retained only 35 guntas having parted with 15 guntas. The rebuttal evidence adduced by defendants as per Exs.D-1 and D-2 would clearly indicate that based on title documents, there is already sub-division. The property purchased by defendants measuring 15 guntas is assigned Sy.No.56/1 whereas the property purchased by plaintiffs is assigned Sy.No.56/2. In Ex.D-8, the extent in the revenue records to an extent of 1 acre 10 guntas is rounded off and the extent is shown as 35 guntas. Even in Ex.D-7, the property purchased by plaintiffs is measuring 35 guntas. The same is found in Ex.D-18. Therefore, the clinching rebuttal evidence placed on record by the defendants at Exs.D-1, D-2, D-4 (sketch), D-7 and D-18 would clearly establish that Sy.No.56 is not at all in existence and it has undergone sub-division. This fact is suppressed by the plaintiffs. The plaintiff has not at all challenged the sub-division which is effected in Sy.No.56. 32
30. Apart from this clinching evidence, defendants have also placed on record Exs.D-23 to D-36. These documents indicate that it is the defendants who are in lawful possession. The entire cogent and clinching rebuttal evidence adduced by the defendants would displace and disprove the plaintiffs case in regard to possession over schedule 'B' property. Therefore, point Nos.1 and 2 formulated above are answered in the negative.
Re: Point No.3:
31. Insofar as plea of adverse possession set up by the plaintiffs is concerned, this Court would find that there are no specific pleadings in the plaint in regard to the exact date on which the possession of plaintiffs became adverse to that of defendants. Concept of adverse possession has been well settled by the judicial committee of the Privy Council in 1907 in Perry vs. Clissold5, wherein it has been held as under: 5
(1907) A.C. 73 33 "It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of Limitation applicable to the case, his right is forever extinguished and the possessory owner acquires an absolute title."
32. The decision of the Privy Council stated supra though not binding on the Supreme Court but, however, the said decision has been upheld by the three Judges of the Hon'ble Apex Court in the case of Nair Service Society vs. K.C.Alexander6. Therefore, it can be said that till this date, it is trite law that a person who claims adverse possession has to plead and prove hostile possession of the land. The Hon'ble Apex Court in the case of Karnataka Board of Wakf vs. Government of India & Others7 regarding the pleadings to 6 AIR 1968 SC 1165 7 (2004) 10 SCC 779 34 be made by a party while claiming title over an immovable property on the basis of adverse possession has held as under:
"Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show (a) on what date he came into possession, (b) what was the nature of his possession
(c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession."
33. It is trite law that in case of adverse possession of land, two aspects has to be taken into consideration. Firstly, the nature of possession of the land should be exclusive, continuous, uninterrupted and it should be actual physical possession and not merely constructive possession over the 35 land. Secondly, the possession should be hostile to the actual owner. The requisite ingredient of animus possidendi (intention to possess) should be present when a plea of adverse possession is raised. The plaintiffs have not produced any documents to indicate that they are in possession of schedule 'B' property. Therefore, the burden of proof was entirely on the plaintiffs and on examination of evidence on record, this Court is of the view that plaintiffs have failed to discharge their burden. Accordingly, point No.3 formulated above is answered in the affirmative.
34. It is a trite law that irrespective of whether injunction sought is temporary or perpetual, the jurisdiction to grant injunction is discretionary. Although the words 'in its discretion' are absent from Sections 38 and 41, but the language of Section 36 renders the remedy under both the sections discretionary. It is also trite law that plaintiff must seek injunction with clean hands. In the present case on hand, the material on record would clearly reveal that plaintiff 36 has suppressed material facts. The present suit is filed by asserting that Sy.No.56 is one single compact land which is factually incorrect and contrary to rebuttal evidence on record. The defendants have succeeded in proving that the land has undergone sub-division and the defendants portion is bearing Sy.No.56/1. This Court has to also take judicial note of the fact that plaintiff asserted title on the ground that he has perfected his title by way of adverse possession and there are no material to support this claim. Therefore, equitable relief of permanent injunction cannot be granted in the present case on hand and this Court is of the view that plaintiff himself is guilty on account of his inequitable conduct. The claim made by the plaintiff is not fair. The propriety of granting an injunction depends upon the facts of each particular case and the general principle of equity as related to injunctions and the discretion that has to be exercised by the Court has to be judicial discretion and the Court has to take note of the fact that by granting injunction should not result in oppression and 37 injury to the other side. It is a trite law that Courts will not grant injunction when good conscience does not require it, where it will cause injustice. The present set of facts also does not indicate that it would be reasonable and equitable to grant an injunction to the plaintiff. If injunction is granted, it will tend to promote injustice rather than protecting the rights. It is a trite law that to grant injunction plaintiff has to establish his right. The existence of right and consequent violation are pre-requisite condition to grant an injunction. An injunction will not issue to protect a right which is not lawful and legal. Therefore, in the present set of facts and circumstances and having regard to the clinching rebuttal evidence led in by defendants, this Court is of the view that plaintiff is not entitled for discretionary relief of injunction.
35. For the foregoing discussions, on meticulous assessment of ocular and documentary evidence, this Court is of the view that Trial Court was justified in recording a categorical finding that plaintiffs have failed to prove that they 38 are the owner of schedule 'A' property measuring 1 acre 10 guntas. The Trial Court having meticulously examined the rebuttal evidence was justified in holding that plaintiffs have failed to prove their lawful possession over the suit schedule 'B' property as on the date of filing of the suit. While answering issue No.1, in absence of specific pleadings and cogent evidence, the Trial Court was justified in holding that plaintiffs have failed to prove that they have perfected their title to schedule 'B' property by way of adverse possession.
36. The judgment and decree of the Trial Court in dismissing the suit filed by the plaintiffs is based on rebuttal evidence and in absence of clinching evidence led in by plaintiffs and therefore, this Court is of the view that the judgment under challenge does not suffer from any infirmities or illegalities. The Trial Court has not at all committed any error in dismissing the suit. The grounds urged in the instant first appeal would not displace the conclusions and findings recorded by the Court below. This Court on re-appreciation of 39 ocular and documentary evidence would affirm the reasons and conclusions arrived at by the Trial Court.
The appeal is devoid of merits and accordingly stands dismissed.
Sd/-
JUDGE CA