Karnataka High Court
Smt. Channamma W/O Late Sanna ... vs Smt. Manjulabai W/O ... on 13 September, 2022
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 13TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR.JUSTICE M.G.S.KAMAL
RSA NO.200022/2016
C/W
RSA NO.200021/2016
RSA NO.200022/2016
BETWEEN
1 . SRI. MEGHRAJ S/O DANAPPA
AGE:55 YEARS, OCC:AGRICULTURE
2 . SRI.NAGAPPA S/O HANUMANTHA
AGE:55 YEARS, OCC:AGRICULTURE
3 . SMT.CHANNAMMA
W/O LATE SANNA GOVINDAPPA
AGE:75 YEARS, OCC:HOUSEHOLD
4 . SMT.NAGAMMA
D/O LATE SANNA GOVINDAPPA
AGE:45 YEARS, OCC:HOUSEHOLD
ALL R/O KALMANGI VILLAGE
TQ.SINDHANUR
DIST:RACIHUR-584128
...APPELLANTS
(BY SRI BASAWARAJ KAREDDY, ADVOCATE)
AND
1 . SRI. ANAND S/O PRANESHACHAR
AGE:46 YEARS, OCC:AGRICULTURE
R/O.SINDHANUR
DIST:RAICHUR-584128
2
2 . SMT.SRIDEVI W/O PRANESHRAO
AGE:MAJOR, OCC:AGRICULTURE
R/O.SINDHANUR
DIST:RAICHUR-584128
3 . SMT.PADMAJA W/O H. RAGHAVENDRARAO
AGE:MAJOR, OCC:AGRICULTURE
R/O.SINDHANUR
DIST:RAICHUR-584128
...RESPONDENTS
(BY SRI MAHANTESH PATIL, ADVOCATE)
THIS RSA FILED U/S 100 OF CPC PRAYING TO ALLOW THE
APPEAL AND SET ASIDE THE JUDGEMENT AND DECREE DATED
09.10.2015, PASSED IN R.A.NO.121/2010 ON THE FILE OF THE
PRL.DISTRICT AND SESSIONS JUDGE AT RAICHUR AND
CONFIRMING THE JUDGEMENT AND DECREE DATED
16.09.2010, PASSED IN O.S.NO.28/2006 ON THE FILE OF THE
SENIOR CIVIL JUDGE, AT LINGASUGUR (SITTING AT
SINDHANUR) AND SUCH FURTHER RELIEFS BE GRANTED TO
WHICH THE APPELLANTS WOULD BE FOUND ENTITLED TO.
RSA NO.200021/2016
BETWEEN
1 . SMT. CHANNAMMA
W/O LATE SANNA GOVINDAPPA
AGE:75 YEARS, OCC:HOUSEHOLD
2 . SMT.NAGAMMA
D/O LATE SANNA GOVINDAPPA
AGE:45 YEARS, OCC:HOUSEHOLD
3 . SRI.HANUMANTHAPPA S/O CHANDAPPA
@ CHANNAPPA
AGE:55 YEARS, OCC:AGRICULTURE
4 . SRI.AMBANNA S/O CHANDAPPA
AGE:50 YEARS, OCC:AGRICULTURE
5 . NAGAPPA S/O HANUMANTHAPPA
@ HANUMANTHA
3
AGE: 52 YEARS, OCC: AGRICULTURE
6. SMT.PADHAMMA W/O LATE RAMANNA
AGE:MAJOR, OCC:AGRICULTURE
7 . SRI.SHIVAGYANAPPA S/O LATE RAMANNA
AGE:MAJOR, OCC:AGRICULTURE
8 . SRI.PAKIRANNA S/O LATE RAMANNA
AGE:MAJOR, OCC:AGRICULTURE
9 . SRI.MEGHARAJ S/O DANAPPA
AGE:47 YEARS, OCC:AGRICULTURE
ALL ARE R/O KALMANGI VILLAGE
TQ.SINDHANUR
DIST:RAICHUR-584128
...APPELLANTS
(BY SRI BASAWARAJ KAREDDY, ADVOCATE)
AND
1 . SMT. MANJULABAI
W/O BINDUMANDHAVACHARYA
AGE:80 YEARS, OCC:HOUSEHOLD
R/O C/O NAGARAJ JOSHI
MANAGER OFF. P.G.BANK
BALLARI-583101
2 . SRI.KRISHNAMURTHY S/O RAMACHARI
AGE:62 YEARS, OCC:MANAGER OF PRAGATI
KRISHNA GRAMEEN BANK
BALLARI-583101
3 . SMT.SRIDEVI W/O PRANESHRAO
AGE:MAJOR, OCC:HOUSEHOLD
R/O SINDHNUR, DIST:RAICHUR-584128
4 . SMT.PADMAJA W/O H.RAGHAVENDRARAO
AGE:MAJOR, OCC:HOUSEHOLD
R/O SINDHNUR, DIST:RAICHUR-584128
5 . SRI.ANAND S/O PRANESHRAO
AGE:46 YEARS, OCC:HOUSEHOLD
R/O UPPAR ONI,
4
SINDHANUR
DIST:RAICHUR-584128
6 . SMT.AMARAMMA W/O LATE BASAVARAJ
AGE:57 YEARS, OCC:HOUSEHOLD
R/O SHARANA BASAVESHWARA COLONY
NEAR SEVA BHARATI HIGH SCHOOL
OPP.SAMAJ KALYAN OFFICE
SINDHANUR, DIST:RAICHUR-584128
7 . SMT.PARVATHI D/O LATE BASAVARAJ
AGE:27 YEARS, OCC:HOUSEHOLD
R/O:BAGALKOT-587101
8 . SMT.MALLAMMA D/O LATE BASAVARAJ
AGE:25 YEARS, OCCHOUSEHOLD
R/O:DEVADURGA, DIST:RAICHUR-584111
9 . SRI.MALLANNA S/O LATE BASAVARAJ
AGE:23 YEARS, OCC:STUDENT
R/O.SHARANA BASAVESHWARA COLONY
NEAR SEVA BHARATHI HIGH SCHOOL
OPP.SOCIAL WELFARE OFFICE
SINDHANUR, DIST:RAICHUR-584128
...RESPONDENTS
(BY SRI MAHANTESH PATIL, ADVOCATE FOR R3, R4 & R5;
SRI SANGANABASAVA B. PATIL, ADVOCATE FOR R6 TO R9;
NOTICE TO R1 & R2 DISPENSED WITH)
THIS RSA FILED U/S 100 OF CPC PRAYING TO ALLOW THIS
APPEAL AND SET ASIDE THE JUDGEMENT AND DECREE DATED
09.10.2015 PASSED IN R.A.NO.120/2010 ON THE FILE OF THE
PRL.DISTRICT AND SESSIONS JUDGE AT RAICHUR,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT
AND DECREE DATED 16.09.2010, PASSED IN O.S.NO.27/2006
ON THE FILE OF THE SENIOR CIVIL JUDGE AT-LINGASUGUR
(SITTING AT SINDHANUR) AND SUCH FURTEHR OR OTHER
RELIEF BE GRANTED TO WHICH THE APPELLANTS WOULD BE
FOUND ENTITLED TO.
THESE APPEALS COMING ON FOR DICTATING JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
5
JUDGMENT
For the sake of convenience, the parties will be referred to as per their rankings before the Trial Court.
2. RSA No.200021/2016 is filed by the plaintiffs in O.S.No.27/2006 while RSA No.200022/2016 is filed by the defendant Nos.1, 2 and 3(a) and 3(b) in O.S.No.28/2006 aggrieved by the common judgment and decree dated 09.10.2015 passed in R.A.No.120/2010 and R.A.No.121/2010 on the file of Principal District and Sessions Judge at Raichur (hereinafter referred to as 'First Appellate Court') by which the First Appellate Court while dismissing the said appeals confirmed the common Judgment and Decree dated 16.09.2010 passed in O.S.No.28/2006 (old O.S.No.277/2000) and O.S.No.27/2006 (old O.S.No.140/2000) on the file of the Senior Civil Judge at Lingasugur.
3. Brief facts of the case are that the plaintiffs filed suit in O.S.No.27/2006 against the respondents herein for the relief of declaration and permanent injunction in respect of the land measuring 51 acres 5 6 guntas consisting and comprised in Survey Nos.138 and 139 of Kalmangi village, Sindhanur taluka. The description of the land given at paragraph No.5 of the plaint is as under:
a. Survey No.138/B measuring 7 acres 21 guntas.
b. Survey No.138/K measuring 7 acres 22 guntas.
c. Survey No.139/A measuring 18 acres 1 gunta.
d. Survey No.139/B measuring 18 acres 1 gunta.
forming one continuance block known and called as 'Joshi Hola'. It is the claim of the plaintiffs:
(a) That defendant Nos.1 and 2 namely, Smt.Manjula Bai and Sri Krishnamurthy and their ancestors were the Inamdars, but, were never cultivating the suit schedule properties personally at any point of time.
(b) That the ancestors of defendant Nos.1 and 2 had leased out the suit properties during May 1950 in favour of the ancestors of the present plaintiffs on rental basis. Thus, since May, 1950, the 7 suit lands are being cultivated by the plaintiffs and their ancestors on the basis of lease giving rental to the said Inamdars every year.
(c) That the names of the plaintiffs and their ancestors came to be entered in the Pahani records during the year 1954-55 i.e., Khasara Pahani and their names were continued up to 1969-70 in the Pahani records and the RTC records.
(d) That earlier this part of the State within which the suit properties are situated was being governed under the Hyderabad Tenancy Act which was in force and under the said Act, names of plaintiff No.1 - Sanna Govindappa and the names of Ambanna and Hire Govindappa have been written as protected tenants and same continued in the Pahani records up to 1969-70 as cultivators of the suit properties.
(e) That the Karnataka Land Reforms Act came into force on 01.03.1974 and after coming into force of the said Act, the 8 plaintiffs and their ancestors have stopped payment of rents to defendant Nos.1 and 2 and to their ancestors on the premise of they having become owners in view of the said new Act. The plaintiffs and their ancestors continued their possession from 01.03.1974 and thereafter asserted the title in themselves on the ground that new Act had confirmed the ownership to the cultivators.
(f) That on and from 01.03.1974, the possession of the plaintiffs become adverse to the Inamdars including the defendant Nos.1 and 2 and they continued their possession openly, peacefully and uninterruptedly with hostile animus and to the knowledge of defendant Nos.1 and 2 and their ancestors continuously for more than 12 years. Thus, they have perfected their title over the suit properties by way of adverse possession as on 01.03.1986.
(g) It is further contended that defendant Nos.1 and 2 and their ancestors were 9 holding the suit properties as Inamdars but not as owners thereof. The Inam lands were not re-granted to defendant Nos.1 and 2 or their ancestors and consequently after coming into force of Karnataka Certain Inam Abolition Act, the Inam lands stand vested with the State. That being so, the defendant Nos.1 and 2 shall have no rights whatsoever in and over the suit properties.
(h) That defendant Nos.1 and 2 have
executed five deeds of sale dated
17.02.2000 in favour of defendant Nos.3 to 6, conveying portion of suit land in their favour.
(i) That the said deeds of sale are illegal without consideration and possession was not parted and the said deeds of sale are not in respect of the suit properties. That defendant Nos.1 and 2 are not the owners of the suit properties and therefore both of them were totally incompetent to execute the said deeds of sale in favour of defendant Nos.3 to 6, as 10 such, the said deeds of sale are not binding on the plaintiffs. Consequently, the plaintiffs are entitled to get that deeds of sale declared as illegal.
(j) That on the basis of the aforesaid transactions defendant Nos.3 to 6 are interfering with the peaceful possession and enjoyment of the suit properties by the plaintiffs.
(k) It is also contended that after the enforcement of Inam Abolition Act, the Inam lands stand vested with the State and the same finds entry in the revenue records. In that view of the matter, the defendants have no concern to the suit properties and the sale deeds are all illegal and null and void. Hence, sought suit for declaration to declare that the plaintiffs are the owners of the suit properties in item Nos.1 to 4 measuring 51 acres 5 guntas and for further decree of permanent injunction restraining the defendants from interfering in the peaceful possession, enjoyment and cultivation of the plaintiffs in and over 11 the suit properties and to declare the deeds of sale executed by defendant Nos.1 and 2 in favour of defendant Nos.3 to 6 as stated above as illegal and null and void to the extent of the plaintiffs right over the suit properties and for consequential relief of rectification of record of rights directing the Deputy Commissioner concern to enter the names of plaintiffs in the revenue records in respect of the suit schedule properties.
4. On service of summons, defendant Nos.1 and 2 remained absent. Defendant Nos.5 and 6 filed the written statement denying the case of the plaintiffs.
5. It is contended that the suit lands have been granted by the Deputy Commissioner under Hyderabad Abolition of Inams Land Act, 1955 on 21.09.1955 in favour of defendant Nos.1 and 2 and their ancestors. Defendant Nos.1 and 2 thus become the owners of the suit properties and in exercise of their ownership, defendant Nos.1 and 2 have executed the deeds of sale in favour of defendant Nos.5 and 6 for valid sale consideration, as such, 12 defendant Nos.5 and 6 had become absolute owners of the suit property.
6. They further contended that the Trial Court had no jurisdiction to try the suit with regard to the tenancy disputes in view of the provisions of Section 132 of the Karnataka Land Reforms Act, 1974. That the plaintiffs had failed to apply Form No.7 under the provisions of Karnataka Land Reforms Act within the period stipulated. Thus, the plaintiffs are not entitled for any relief.
7. Defendant Nos.1 to 4 filed a memo dated 04.08.2001 adopting the written statement filed by defendant No.5 and 6.
8. Based on the pleadings, the Trial Court framed the following issues:
1. ªÁ¢AiÀÄgÀÄ zÁªÁ C£ÀÄZÀÆa ¸ÀévÀÄU Û ¼À ° À è ¤gÀAvÀgª À ÁV ªÀiÁ°PÀgÁV AiÀiÁgÀ ºÀ¸PÀÛ ÉëÃ¥À E®èzÃÉ ¸Á颣ü vÀ AÉ iÀÄ£ÀÄß 12 ªÀµðÀ UÀ½VAvÀ ºÉaÑ£À CªÀ¢A ü iÀÄ°è ¸Á颣 ü v À É ºÉÆA¢ ¥Àw æ PÀÆ® ¸Á颣 ü v À A É iÀÄ ªÀÄÆ®PÀ ºÀPÌÀ£ÀÄß ¹éÃPÀj¹PÉÆArgÀÄvÉÃÛ ªÉ JA§ÄzÀ£ÀÄß ¸Á©ÃvÀÄ¥Àr¸ÀÄvÁÛgA É iÉÄÃ?
2. ªÁ¢AiÀÄgÀÄ PÀA æ iÀÄ¥ÀvÀæ ¸ÀASÉå 154-99-00 152-99-00 153-99-00 185-99-00 ºÁUÀÆ 184-99-00 13 ¢:17.2.2000 gÀAzÀÄ 1 ªÀÄvÀÄÛ 2 £Éà ¥Àw æ ªÁ¢AiÀÄgÀÄ zÁªÁ ¸ÀévÀÄU Û ¼ À À §UÉÎ 3 jAzÀ 6 £Éà ¥Àw æ ªÁ¢AiÀÄjUÉ PÀæAiÀÄ¥ÀvUÀæ ¼ À £ À ÀÄß §gÉzÀÄPÉÆnÖzÀÄÝ ¸Àzj À PÀA æ iÀÄ¥ÀvU Àæ ¼ À ÀÄ PÁ£ÀÆ£ÀÄ ¨Á»gÀªÁVgÀÄvÀÛª.É ±ÀÆ£Àå ªÀÄvÀÄÛ C¹AzsÀĪÁVzÉ £ÀªÀÄä ªÉÄÃ¯É ¨Á¢üvª À ÁUÀvPÀ ÀÌz® À è JA§ÄzÀ£ÄÀ ß ¸Á©ÃvÀÄ¥Àr¸ÀÄvÁÛgA É iÉÄÃ?
3. ¥Àwæ ªÁ¢AiÀÄgÀÄ zÁªÁ ¸ÀévÀÄU Û ¼ À ° À è ªÀiÁ°ÃPÀgÁV ¸Á颣 ü v À É ºÉÆA¢gÀÄvÉÃÛ ªÉ JA§ÄzÀ£ÄÀ ß ¸Á©ÃvÀÄ¥Àr¸ÀÄvÁÛgÃÉ AiÉÄÃ?
4. ¥Àw æ ªÁ¢AiÀÄgÀÄ °TvÀ ºÉýPÉAiÀÄ°è w½¹zÀAvÉ F zÁªÉAiÀÄ£ÀÄß EvÀåxÀð¥Àr¸ÀĪÀÅzÀPÉÌ ªÀiÁ£Àå F £ÁåAiÀiÁ®AiÀÄPÉÌ £ÁåAiÀiÁ¢üPÁgÀ EgÀĪÀÅ¢®è JA§ÄzÀ£ÄÀ ß ¸Á©ÃvÀÄ¥Àr¸ÀÄvÁÛgA É iÉÄÃ?
5. ªÁ¢AiÀÄgÀÄ zÁªÁ ¸ÀévÀÄU Û ¼ À ° À è zÁªÁ ¢£ÁAPÀzA À zÀÄ ¸Áé¢ü£v À É ºÉÆA¢gÀÄvÉÃÛ ªÉ JA§ÄzÀ£ÄÀ ß ¸Á©ÃvÀÄ¥Àr¸ÀÄvÁÛgA É iÉÄÃ?
6. ªÁ¢AiÀÄgÀÄ zÁªÉAiÀÄ°è PÉýzÀAvÉ ¥ÀjºÁgÀ ¥Àqz É ÀÄPÉƼÀî®Ä CºÀðgÉÃ?
7. ªÁ¢ ¸ÀAzÁAiÀÄ ªÀiÁrgÀĪÀ £ÁåAiÀiÁ®AiÀÄzÀ ±ÀÄ®Ì ¸Àj EzÉAiÉÄà ªÀÄvÀÄÛ ¸ÀªÄÀ ¥ÀðPÀªÁVzÉAiÉÄÃ?
8. AiÀiÁªÀ DzÉñÀ CxÀªÁ rQæ?
9. The suit in O.S.No.28/2006 (old O.S.No.277/2000) was filed by one Anand, Sridevi and Padmaja who were defendant Nos.3, 4 and 6 in O.S.No.27/2006 against Megharaj, Nagappa and Govindappa who were plaintiffs in O.S.No.27/2006. The said suit in O.S.No.28/2006 is filed seeking the relief of permanent injunction in respect of land in Survey No.139/A measuring 15 acres, Survey No.138/K 14 measuring 7 acres 22 guntas for the relief of perpetual injunction restraining the defendants therein from interfering with the peaceful possession of the plaintiffs on the premise of they being the absolute owners in possession of the suit properties having purchased the same in terms of deeds of sale dated 09.02.2000 for valid sale consideration and that the defendants therein were interfering with their possession without any right, title and interest thereon.
10. In the written statement filed in the said suit by said Megharaj, Nagappa and Sanna Govindappa denied the contention of the plaintiffs of they having purchased the suit properties. The defendants therein reiterated their contentions as pleaded in the suit in O.S.No.27/2006 as extracted hereinabove.
11. Based on the pleadings in the said suit, the Trial Court framed the following issues:
1. ªÁ¢AiÀÄgÀÄ zÁªÁ C£ÀÄZÀÆaAiÀÄ ¸ÀévÀÄU Û ¼ À ° À è zÁªÁ ¢£ÁAPÀzAÀ zÀÄ ¸Á颣ü v À A É iÀÄ£ÀÄß ºÉÆA¢gÀÄvÉÛÃªÉ JA§ÄzÀ£ÀÄß ¸Á©ÃvÀÄ¥Àr¸ÀÄvÁÛgA É iÉÄÃ?
2. ªÁ¢AiÀÄgÀÄ zÁªÁ ¸ÀévÀÄU Û ¼ À ° À ègÀĪÀ vÀªÀÄä ¸Áé¢Ãü £À C£ÀĨsÀªPÀ ÉÌ 15 ¥Àw æ ªÁ¢AiÀÄjAzÀ GAmÁzÀ ºÀ¸ÀÛPÉëÃ¥Àª£ À ÄÀ ß ªÀÄvÀÄÛ vÀqUÉ ÀlÄÖ«PÉAiÀÄ£ÀÄß ¸Á©ÃvÀÄ¥Àr¸ÀÄvÁÛgA É iÉÄÃ?
3. ªÁ¢AiÀÄgÀÄ F zÁªÉAiÀÄ°è PÉýzÀAvÉ ¥ÀjºÁgÀ ¥Àqz É ÀÄPÉƼÀ® î Ä CºÀðgÉÃ?
4. AiÀiÁªÀ DzÉñÀ CxÀªÁ rQæ?
12. The Trial Court has taken up both the suits for common trial and disposed, in which, suit in O.S.No.28/2006 has been taken as a lead case. Plaintiff Sri Anand in the said suit has been examined as PW.1 and one Sri U.Basavaraj has been examined as PW.2 and have exhibited 21 documents marked as Exs.P1 to P21. One Sri Megharaj, who is plaintiff in O.S.No.27/2006 and defendant No.1 in O.S.No.28/2006 has been examined as DW.1 and two other witnesses namely, Yankappa and Sharenegouda have been examined as DW.2 and DW.3 and exhibited 55 documents marked as Exs.D1 to D55.
13. The Trial Court on appreciation of the evidence, by its impugned common judgment decree dated 16.09.2010 decreed the suit in O.S.No.28/2006 (old O.S.No.277/2000) and passed the decree of permanent injunction restraining the defendants therein from 16 interfering with the peaceful possession and enjoyment of the suit properties by the plaintiffs and consequently dismissed the suit in O.S.No.27/2006 (old O.S.No.140/2000) with cost. Being aggrieved by the said judgment and decree passed by the Trial Court, the said defendants in O.S.No.28/2006 and plaintiffs in O.S.No.27/2006 filed regular appeals in R.A.No.120/2010 and R.A.No.121/2010 respectively.
14. The First Appellate Court considering the grounds urged in the memorandum of appeals, framed the following points for its consideration:
1. Whether the appellants in R.A.No.120/2010 and 121/2010 are entitled to produce additional evidence under I.A.No.8 Order 41 Rule 27 of IPC as sought for?
2. Whether the plaintiffs in O.S.No.27/2006 have proved that they have perfected their title over the suit schedule lands by virtue of adverse possession.
3. Whether the plaintiffs in O.S.No.27/2006 have proved their lawful possession over the suit schedule land as on the date of suit?17
4. whether the plaintiffs in O.S.No.28/2006 have proved their lawful possession over the suit schedule land as on the date of suit?
5. Whether the plaintiffs in O.S.No.27/2006 have proved that the sale deeds executed by defendant Nos.1 and 2 in favour of defendant Nos.4 to 6 in respect of suit schedule land are illegal and null and void?
6. Whether the judgment and decree under appeal is illegal, perverse and against the material on record and against the law as such same is liable to be set aside?
7. What order?
15. The First Appellate Court has answered point Nos.1 to 3, 5 and 6 in the negative and point No.4 in the affirmative. Consequently, the First Appellate Court dismissed the appeals and confirmed the common judgment and decree dated 16.09.2010 passed by the Trial Court in the said O.S.No.27/2006 and O.S.No.28/2006. Being aggrieved by the same, the present appeals are filed.18
16. This Court by order dated 02.08.2022 had admitted the aforesaid appeals for consideration of the following substantial question of law:
"Whether the First Appellate Court was justified in dismissing the appeals filed by appellant in R.A.Nos.120/2010 and 121/2010 on the premise that plaintiffs in any suit cannot seek declaration of ownership by way of adverse possession and the suit as such is not maintainable?"
17. Sri Basavaraj Kareddy, learned counsel for the appellants reiterating the grounds urged in the memorandum of appeals submitted:
a. That the Trial Court though has extracted the pleadings and evidence of the parties extensively from page Nos.1 to 81 of its 87 pages judgment has however not discussed or given any finding with regard to the case of the plaintiffs except at page Nos.83 and 84 in favour of the plaintiffs in O.S.No.28/2006 and against the plaintiffs in O.S.No.27/2006. Thus, the reasoning of the Trial Court is cryptic and lack application of mind.19
b. That the Trial Court and the First Appellate Court erred in holding that the plaintiffs herein did not file Form No.7 in the year 1974 and as such they cannot claim occupancy rights over the suit properties and they not having made the State as a party in which the suit lands are vested, they are estopped from claiming adverse possession against the respondents.
c. That the Trial Court and the First Appellate Court have erred in concluding that the plaintiffs have not accepted the ancestors of Respondents 1 and 2 as the owners and have also failed to prove their ownership over the suit property. That the First Appellate Court erred in holding that plea of adverse possession is available only when plaintiffs admit defendants to be the owner of suit land. That the Trial Court and the First Appellate Court have not appreciated the oral and material evidence produced by the parties. That the presumptive value with regard to the entries in the records of rights produced by the plaintiffs have not been considered. The plaintiffs have proved their possession by examining P.Ws.2 to 4 who are 20 the owners of the surrounding lands which is not appreciated.
d. That the First Appellate Court grossly erred in rejecting the application in I.A.No.8 filed by the plaintiffs under Order 41 Rule 27 of CPC seeking to produce two documents with regard to proof of their possession over the suit property. Thus, he submits that the Trial Court and the First Appellate Court have grossly erred in dismissing the suit of the plaintiff.
18. On the other hand, Sri.Mahantesh Patil, learned counsel for respondents 1 to 3 (plaintiffs in O.S.No.28/2006 and defendants 3 to 6 in O.S.No. 27/2006), justifying the order passed by the Trial Court and First Appellate Court submits that basically suit of the plaintiff in O.S.No.27/2006 is one for declaration based on plea of adverse possession. That the plaintiffs have given description of the suit property in Paragraph 5 of the plaint, however plaintiffs have not described as to who is in possession of which land and to what extent of land. He further submits that the plaintiffs have taken mutually 21 contradictory stand detriment to their own interest. On the one hand, plaintiffs are claiming to have perfected the title over the suit property by way of adverse possession while on the other hand, have denied the ownership of Defendants No.1 and 2 and their ancestors. Therefore, the plaintiffs themselves are not sure with regard to their very stand in the matter much less them having perfected their title over the suit property by way of adverse possession. Referring to the documents produced by the plaintiffs, he submits that on and after 1970, there has been no piece of evidence produced by the plaintiffs to prove their possession till date of the suit. Mere oral evidence produced by the plaintiffs cannot be countenanced.
19. As regards the substantial question of law, he submits that the First Appellate Court has held that the suit of the plaintiffs is not maintainable taking into consideration the law laid down by the Apex Court in the case of GURUDWARA SAHIB vs. GAM PANCHAYAT VILLAGE SIRTHALA AND ANOTHER (2014 SAR (Civil)
33), which was the law prevailing at that time and 22 therefore, the reasoning given by the First Appellate Court cannot be faulted in dismissing the suit of the plaintiff as not maintainable. Hence, he seeks dismissal of the appeal answering the substantial question of law in the negative.
20. Heard the learned counsel for the parties and perused the records.
21. The Apex Court in the case of RAVINDRA KAUR GREWAL AND OTHERS vs. RADHAKRISHNA REDDY (DEAD) THROUGH LEGAL REPRESENTATIVES [(2019)8 SCC 729] dealing with issues regarding acquisition of ownership by adverse possession and also dealing with issues concerning remedies available to a person who perfects his title to the property by way of adverse possession, has held that a person claiming title by virtue of adverse possession can maintain a suit under Article 65 of Limitation Act for declaration of title and for permanent injunction seeking protection of his possession, thereby restraining the defendant from interfering with his in possession or for restoration of possession in case of illegal dispossession by the defendant whose title has been 23 extinguished by virtue of plaintiff remaining in the adverse possession. Thus, the Apex Court in the said Judgment referring to catena of Judgments with regard to position of law on adverse possession and right of any person to seek for declaration of his title based on adverse possession has held that such a suit is maintainable and has further held that the view taken by the Apex Court in the case of GURUDWARA SAHIB supra cannot be said to be laying down the law correctly and was thus, over-ruled. In that light of the matter, the reasoning given by the First Appellate Court at Paragraph 18 of its Judgment holding that the suit is not at all maintainable and further declining to go further into the matter requires reconsideration.
22. Learned counsel for the plaintiff had insisted that if in the event of substantial question of law is answered in the affirmative holding that the First Appellate Court was not justified in giving a finding to the effect that the suit is not maintainable, matter requires to be remanded back for fresh consideration. On these submissions, it is necessary to note that the remand cannot be made for mere asking. 24 Requirement of law is to give finality to the litigation and the remand would be made only if it is made out that there is no insufficient material evidence on record. In other words, if the material evidence available on record is sufficient enough for determination of the lis between the parties, this Court under Section 103 of the CPC can well appreciate the evidence and adjudicate the suit.
23. In the light of the above, the matter is taken up for final disposal by this Court itself. As noted hereinabove, the case of the plaintiffs as pleaded in Para 8 of the plaint in O.S.No.27/2006 is that they and their fore- fathers were tenants in respect of the suit property under Defendants No.1 and 2 their ancestors from the month of May 1950 and they continued to pay their rents to Defendants No.1 and 2 and to their ancestors upto 01.03.1974, the date when the Karnataka land Revenue Act came into force. It is the case of the plaintiffs that with the advent of Karnataka Land Reforms Act, the suit land vested with the Government. However, the plaintiffs and their ancestors continued to be in possession of the 25 land. The plaintiffs having continued to be in possession of the suit land as above have perfected their title by way of adverse possession on 01.03.1986. Thus, it is the case of the plaintiff that on and after 01.03.1986, the plaintiffs have become absolute owner of the suit property. The plaintiffs having claimed to be the tenant, under the defendants and their ancestors, however at Paragraph 9 of the plaint pleaded that Defendants No.1 and 2 and their ancestors were holding suit property as Inamdars and not as owners thereof. That Inam lands were not re-granted to the Defendants No.1 and 2 or their ancestors and consequently, after coming info force of Karnataka Certain Inam Abolition Act, the Inam lands stood vested with the Government. That being so, Defendants No.1 and 2 shall have no right whatsoever in and over the suit properties.
24. Thus, the subsequent pleading of the plaintiffs in Paragraph 9 of the plaint runs contrary to the pleading at Paragraph 8 of the plaint. In other words, plaintiffs have not recognized, admitted or acknowledged the ownership of Defendants No.1 and 2 or their ancestors which is a 26 condition precedent to set up plea of adverse possession though the plaintiffs have claimed to be in possession of suit property.
25. Admittedly, no documentary evidence is produced by the plaintiffs to establish their possession over the suit land. Mere oral evidence of D.Ws.1 to 4 of plaintiffs being in possession in the suit land would be of no avail. Ex.D2, Ex.D3, Ex.D4, Ex.D5, Ex.D6, Ex.D7, Ex.D8, Ex.D9, Ex.D12, Ex.D13, Ex.D14, Ex.D15, Ex.D16, Ex.D17 relied upon by the plaintiff are all of the years 1955-56 and only upto year 1973 wherein name of one Kallappachari is reflected which the plaintiff claimed to be their ancester. Except this, no other material evidence is produced by the plaintiffs to prove their possession.
26. It is settled law that:
"A plea of adverse possession is founded on the acceptance that ownership of the property vests in another against whom the claimant asserts possession adverse to the title of the other. Possession is adverse in the sense that it is contrary to the acknowledged title in the other person against whom it is claimed.27
A person who sets up a plea of adverse possession must establish both possession which is peaceful, open and continuous - possession which meets the requirement of being 'nec vi nec calm and nec precario'. To substantiate a plea of adverse possession, the character of the possession must be adequate in continuity and in the public because the possession has to be to the knowledge of the true owner in order for it to be adverse. These requirements have to be duly established first by adequate pleadings and second by leading sufficient evidence. Evidence, it is well settled, can only be adduced with reference to matters which are pleaded in a civil suit and in the absence of an adequate pleading, evidence by itself cannot supply the deficiency of a pleaded case."
[CHATTI KONATI RAO AND OTHERS vs. PALLE VENKATA SUBBA RAO (2012)1 SCC 452]
27. The plea of adverse possession is not a pure question of law, but a blended one of the fact and law. Apex Court in the case of UTTAM CHAND(D) THROUGH L.Rs. vs. NATHU RAM (D) THROUGH L.Rs AND OTHERS (AIR 2020 SC 461) has referred to the aforesaid Judgment and has elaborated the principles of adverse possession. It is also held that possession to be adverse must be possession by a person who does not acknowledge others' rights, but denies them. 28
28. In the light of the law laid down by the Apex Court in the aforesaid Judgments, the plea of adverse possession raised by the plaintiffs in the present suit falls shy of the said requirements. As noted above, while at Paragraph 8 of the plaint, the plaintiffs in O.S.No.27/2021 claimed to have perfected their title in view of them being in possession of the property and from 01.03.1974, the date from which the Karnataka Land Reforms Act came into force and continued to do so for 12 years upto 01.03.1986 as said act confers ownership of them as cultivators. This plea strictly is not plea of adverse possession as the plaintiffs are not denying the title of the true owners. Further, in Paragraph 9 of the plaint, as noted above, the plaintiffs have contended that Defendants No.1 and 2 were mere Inamdars and were not owners of the land and on coming into force of Karnataka Certain Inams Abolition Act, land having been vested with the State, the Defendants No.1 and 2 or their ancestors did not have right and title over the suit property which categorically makes it clear that the plaintiffs are not 29 acknowledging or accepting the ownership of the Defendants No.1 and 2 to comply with the requirement of their animus possidendi or hostile possession against the owners. Thus, the very foundational pleading in the plaint in O.S.No.27/2006 not being in compliance with the requirement of law for declaration of title by adverse possession, any amount of proof thereof is of no avail.
29. However, the plaintiffs have not produced any material evidence in the nature of revenue records with regard to their alleged possession over the suit property except the oral evidence which is of no avail. It is necessary at this juncture to note that even as per Ex.D48 produced by the plaintiff, the purported grant order made by the Deputy Commissioner under the Hyderabad Tenancy and Agricultural Lands Act, 1950, the land in question were granted in favour of Defendants 1 and 2. The plaintiffs have however, refused to accept ownership of Defendants No.1 and 2 or their ancestors. In that view of the matter, the Trial Court and First Appellate Court are justified in holding that the plaintiffs failed to prove their 30 case of perfecting their title by adverse possession. No interference in this regard is warranted.
30. The contention of the plaintiffs is that their application under Order XLI Rule 27 of CPC not considered by the First Appellate Court. It is seen that the First Appellate Court at Paragraph 19 of its Judgment while considering said application, has taken note of the fact that plaintiffs had sought to produce copies of spot panchanama dated 22.08.2015 and 18.08.2015 which documents had come into existence during the pendency of the appeal and could not have been taken into consideration as the plaintiffs were required to prove their possession as on the date of the suit. The application having been dismissed for the aforesaid reasoning, cannot be found fault with.
27. For the aforesaid reasons, following:
ORDER Appeals in R.S.A.No.200022/2016 and R.S.A.No.200021/2016 are dismissed. Consequently, the common Judgment and Decree dated 16.09.2010 passed 31 in O.S.No.28/2006 (old O.S.No.277/2000) and O.S.No.27/2006 (old O.S.No.140/2000) on the file of the Senior Civil Judge at Lingasugur and the common judgment and decree dated 09.10.2015 passed in R.A.No.120/2010 and R.A.No.121/2010 on the file of Principal District and Sessions Judge at Raichur are confirmed.
Sd/-
JUDGE Srt/bnv