Karnataka High Court
K Ramanath vs Mansalikotrappasetty on 17 August, 2012
Author: Ajit J Gunjal
Bench: Ajit J.Gunjal
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 17TH DAY OF AUGUST, 2012
BEFORE
THE HON'BLE MR.JUSTICE AJIT J.GUNJAL
REGULAR FIRST APPEAL No. 1010/2001
BETWEEN:
K RAMANATH
S/O K NEELAGIRI RAO,
AGE: 47 YEARS, OCC: WORKING AS
TEACHER IN GOVT. SCHOOL AT
SIDIGINAMOLA VILLAGE,
R/O DOOR NO.50,
WARD NO 24, COWL BAZAAR,
BELLARY. ... APPELLANT
(BY SRI. S.L. MATTI, ADV. FOR
SRI. JAGADISH PATIL, ADV.)
AND
1. MANSALIKOTRAPPASETTY
S/O SUBBANNASHETTY,
SINCE DECEASED REPRESENTED
BY HIS LRS.
1a. MANSALI VEERANNASETTY,
AGE: 70 YEARS, OCC: PVT. WORK,
R/O 6TH CROSS, JCR EXTENSION,
CHITRADURGA-577501.
1b. MANASALI SUBBANNASETTY,
AGE: 65 YEARS, OCC: CIVIL ENGINEER,
C/O MANASALI SANJEEVSHETTY @ RAMU,
RFA No.1010/2001
:2:
R/O NEAR JAIN TEMPLE, MAIN BAZAAR,
KOTTUR, TQ. KUDALGI, DIST. BELLARY.
1c. MANASALI RAVINDANATH,
SINCE DECEASED REP. BY HIS LRS.
1ca. M.R.NIRMALA
W/O MANSALI RAVINDANATH,
AGE: 55 YEARS, OCC: HOUSEHOLD,
R/O NEAR KANNIKA PARAMESHWARI
TEMPLE, KOTTUR, TQ. KUDALGI,
DIST: BELLARY.
1cb. E.G.JYOTI,
AGE: 28 YEARS, OCC: HOUSEHOLD,
R/O NEAR VEERABHADRESHWAR TEMPLE,
ATTARWADI, SINDANUR, DIST: RAICHUR.
1cc. ROOPA D/O M.R.NIRMALA,
AGE: 24 YEARS, OCC: HOUSEHOLD,
R/O NEAR KANNIKA
PARAMESHWARI TEMPLE,
KOTTUR, TQ. KUDALGI, DIST. BELLARY.
1d. E.V.MANJULA
AGE: 58 YEARS, OCC: HOUSEHOLD,
R/O ATTRAWADI, NEAR VEERABHADRESHWAR
TEMPLE, ATTARWADI, SINDANUR,
DIST. RAICHUR.
1e. NAGARAJSHETTY
AGE: 58 YEARS, OCC: SECRETARY,
R/O SINDGI COMPOUND,
BELLARY.
1f. A.N.RAJESHWARE,
AGE: 55 YEARS, OCC: HOUSEHOLD,
R/O RADHAKRISHAN FERTILIZERS,
RAMPUR VILLAGE, TQ. MONAKALMUR,
RAMPUR VILLAGE, TQ. MONAKALMUR,
DIST. CHITRADURGA.
1g. VASUNDARA M.BEVINKATTI,
RFA No.1010/2001
:3:
SINCE DECEASED REP. BY HER LRS.
1ga. M.K.BEVINKATTI,
AGE: 58 YEARS, OCC: BUSINESS,
R/O AZAD NAGAR, CHITRADURGA.
1gb. SANTOSH M.BEVINKATTI,
AGE: 20 YEARS, OCC: STUDENT,
R/O AZAD NAGAR, CHITRADURGA.
1gc. SWETA M.BEVINKATTI,
AGE: 19 YEARS, OCC: STUDENT,
R/O AZAD NAGAR, CHITRADURGA.
1h. T.K.SARALA,
AGE: 52 YEARS, OCC: HOUSEHOLD,
R/O SAJJANKOTE, J.N.KOTE POST,
DIST. CHITRADURGA.
1i) MANASALI SANJEEVNATHSHETTY @ RAMU,
AGE: 43 YEARS, OCC: BUSINESS,
R/O NEAR JAIN TEMPLE, MAIN BAZAR,
KOTTUR, TQ. KUDALGI,
DIST. BELLARY.
2. M.NAGARAJSHETTY
SINCE DECEASED REPRESENTED BY HIS LRS.
2a. M.BHADRAPPASHETTY
S/O LATE MANASALI NAGARAJSHETTY,
R/O LAXMI FLOOR MILL,
MAIN ROAD, KOTTUR-583134.
TQ. KUDALGI, DIST. BELLARY.
2b. M.KOTTRASHETTY,
S/O LATE MANASALI NAGARAJSHETTY,
R/O LAXMI FLOOR MILL,
MAIN ROAD, KOTTUR-583134.
TQ. KUDALGI, DIST. BELLARY.
2c. GOPALKRISHNA SHETTY,
S/O M.NAGARAJSHETTY,
R/O SRI SATYA SAI TRADERS,
RFA No.1010/2001
:4:
MAIN ROAD, KOTTUR-583134.
TQ. KUDALGI, DIST. BELLARY.
2d. VENKATAMMA
W/O LATE M.NAGARAJSHETTY,
R/O SRI SATYA SAI TRADERS,
MAIN ROAD, KOTTUR-583134.
TQ. KUDALGI, DIST. BELLARY.
3. M.S. GURUBASAVARAJSETTY,
S/O LATE MANASALI SANJEEVAPPASHETTY,
HINDU, MAJOR, BUSINESS, R/O KOTTUR,
TQ. KUDLIGI, DIST. BELLARY.
4. VIJAYAKUMARA
S/O LATE MANASALI ERANNASHETTY,
HINDU, MAJOR, GOPAL ENTERPRISES,
5. VENKATESH
S/O LATE MANASALI ERANNASHETTY,
HINDU, MAJOR, MERCHANT, R/O KOTTUR,
TQ. KUDLIGI, DIST. BELLARY.
6. SURESH
S/O LATE MANASALI ERANNASHETTY,
HINDU, MAJOR, AGRICULTURIST &
MERCHANT, R/O KOTTUR,
TQ. KUDLIGI, DIST. BELLARY.
7. SATISH
S/O LATE MANASALI ERANNASHETTY,
AGE: 30 YEARS, R/O KOTTUR,
TQ. KUDLIGI, DIST. BELLARY.
8. GOPALKRISHNA
S/O LATE MANASALI ERANNASHETTY,
HINDU, AGE: 28 YEARS, MERCHANT,
R/OKOTTUR, TQ. KUDALGI,
DIST. BELLARY. ... RESPONDENTS
(BY SRI. VINAY S.KOUJALAGI, ADV. FOR R1C(A)-R1C(C), R1D,
R1E, R1G(A)-R1G(C), R1H, R1(I).)
RFA No.1010/2001
:5:
THIS R.F.A. RFA FILED UNDER SECTION 96 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 21.7.2001 PASSED
IN O.S.NO.17/1996 ON THE FILE OF THE CIVIL JUDGE (SR.DN.),
HOSPET, DISMISSING THE SUIT FOR DECLARATION, POSSESSION
AND FOR MANDATORY INJUNCTION.
THIS R.F.A. COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
During the course of the judgment, parties would be referred to as per the ranking in the trial court.
2. The appeal is by the plaintiff. The suit is filed for declaration of title in respect of the suit schedule property and also to put the plaintiff in possession and also to issue a decree for demolishing the illegal construction in the suit schedule property and also for mesne profits.
3. A perusal of the pleadings discloses that the litigation in so far as the suit schedule property commenced way back in the year 1924. The plaintiff claims that he is the absolute owner of the property RFA No.1010/2001 :6: bearing Old No.462, 42 and 43 and new Door No.55 and 56 mentioned in the schedule 'A' and he was in peaceful possession and enjoyment of the property till January 1996. The suit property originally belonged to one J.Hanumantha Rao s/o Bheema Rao. J.Hanumantha Rao died in the year 1921 leaving behind his widow J.Hanumavva. J.Hanumavva had only limited interest and she had no power to alienate the properties of her late husband. The said J.Hanumavva executed a registered sale deed in favour of late Manasali Bhadrappa, father of defendant No.2 through a registered sale deed dated 15.08.1924. The father of the 1st defendant and father of the 2nd defendant are brothers. Defendant nos.2 to 8 are the grandsons of late Manasali Bhadrappa.
4. One Shanabhog Hanumantha Rao and Shiva Shankara Rao claiming to be the reversioners in respect of the suit schedule properties filed a suit in RFA No.1010/2001 :7: O.S.No.133/1925 against the said Manasali Bhadrappa, Hanumavva and two others. The said suit on contest was decreed and was held that the sale deed executed by Hanumavva in favour of Manasali Bhadrappa was not for legal necessity and therefore it was held that the sale was invalid and not binding on the reversioners after the death of Hanumanth Rao. As against the said judgment and decree passed in O.S.No.133/1925, Manasali Bhadrappa and Shivarudrappa filed an appeal in R.A.No.29/1927 before the District Judge, Bellary and the said appeal was dismissed on 08.11.1928 and the judgment and decree passed in O.S.No.133/1925 was confirmed.
J.Hanumavva died in the year 1943 and after her death, the suit schedule property devolved upon Chigateri Gundamma, sister of J.Hanumatha Rao under the provisions of Hindu Law of Inheritance Amendment Act, 1929. The said Chigateri Gundamma enjoyed the RFA No.1010/2001 :8: suit schedule properties in her own right, title and interest without any obstruction continuously from 1943 to 1968 and she also perfected her title by adverse possession. After the death of J.Hanumavva, the said Chigateri Gundamma was looked after by plaintiff's father Sri.K.Neelagiri Rao and she had tremendous love and affection towards the plaintiff. Hence, she executes a registered Will deed on 09.01.1968 while she was in a sound disposing state of mind bequeathing the suit schedule property along with other properties in favour of the plaintiff. According to the plaintiff, the said Will was the last Will executed by her and was not revoked during her life time. Chigateri Gundamma died on 14.01.1968. After her death, the plaintiff became the absolute owner of the suit schedule property and he was in enjoyment of the suit property without any interruption in his own right and he perfected his title by RFA No.1010/2001 :9: adverse possession. Defendants have no right, title or interest after the death of J.Hanumavva.
In the year 1989, the plaintiff gave an application to the Chief Officer, Town Municipality, Kottur, for the mutation by producing all the records pertaining to the suit schedule property and his name was mutated. As against the said mutation, defendant No.1 filed revision petition before the Divisional Commissioner, Gulbarga. Suffice it to note that the authorities directed the plaintiff to have his right worked out in a competent civil court. It is his case that after filing of the present suit, defendant No.1 illegally constructed a complex and has let it out to Sri.Shambhulingaiah and Shashidharaiah on a monthly rent of Rs.1,000/- per month. Defendant No.1 is unauthorisedly collecting the said rent. Cause of action arose when the said J.Hanumavva executed a sale deed in favour of Manasali Bhadrappa and when the sale was held to be invalid in an appeal filed by Manasali RFA No.1010/2001 : 10 : Bhadrappa, the present suit was filed for the aforesaid reliefs.
The defendants entered appearance and have filed written statement denying the plaint averments including the execution of the Will by Smt.Chigateri Gundamma in favour of the plaintiff. A perusal of the written statement discloses that it is one of total denial except for the fact that they have purchased the suit schedule property pursuant to a registered sale deed dated 15.08.1924 and about the proceedings initiated by the reversioners seeking to set aside the sale on the ground that it was not for legal necessity. They would also specifically deny the execution of the Will. The defence set up is only two folds; one is that Manasali Bhadrappa purchased the suit property pursuant to a registered sale deed dated 15.08.1924 and he has been put in possession of the suit schedule property and he continued to be in possession till his death and after his RFA No.1010/2001 : 11 : death, the defendants are continued to be in possession. It is their specific case that they have been in lawful possession and pursuant to the decree obtained by the predecessor of the plaintiff, they have not been dispossessed from the suit property under due process of law either by the plaintiff or the predecessors at any point of time. Hence, the right of the plaintiff has stood extinguished under Section 27 of the Limitation Act. They would also contend that they have also perfected their title by adverse possession coupled with the provisions of Section 27 of the Limitation Act.
On the basis of these pleadings, the learned trial Judge has framed the necessary issues:
"i) Whether the plaintiff proves that one Chigateri Gundamma was the absolute owner of the suit schedule property and she in turn has bequeathed the suit schedule 'A' property under a valid registered Will deed dated 09.01.1968?
RFA No.1010/2001 : 12 : ii) Whether the defendants prove that the alleged suit will is false, forged, concocted and bogus document?
iii) Whether the plaintiff proves that the mutation order passed by the Administrator, T.M.C., Kudligi, is false, illegal and is not binding on him?
iv) Whether the defendants prove that they have allegedly perfected their title to the suit property by virtue of law of adverse possession openly, peacefully, continuously, for more than 12 years, as of right, to the knowledge and hostile to the ownership of the plaintiff and his predecessors in title?
v) Whether the suit of the plaintiff is barred by time?
vi) Whether the alleged right of the plaintiff, if any, in the suit property is extinguished due to lapse of time u/s 27 of the Limitation Act, 1963?
vii) Whether the plaintiff proves that the alleged construction of the building in RFA No.1010/2001 : 13 : the suit property by the defendants is unauthorized and illegal?
viii) Whether the plaintiff is entitled to the relief of declaration of his title over the suit schedule 'A' property?
ix) Whether the plaintiff is entitled to the relief of mandatory injunction, as prayed for?
x) Whether the plaintiff is entitled to take
back the possession of the suit
schedule (A) property from the
defendants?
xi) What order/decree?
Recasted Issue No.2 framed on 7.6.2000:
2. Whether the plaintiff proves that the Will dated 9.1.1968 on which the suit claim is based is properly executed, genuine and beyond the suspicious circumstances and that it is the last will of Testator?
Additional issue framed on 7.6.2000:
1. Whether the plaintiff proves that defendant No.1 has illegally constructed a maliga and let out the RFA No.1010/2001 : 14 : same to Sri.Shambulingaiah and Shashidharaiah on monthly rent of Rs.1,000/- and he is entitled for mesne profits at the rate of Rs.1,000/- per month from 1.8.1997?
In order to substantiate his claim the plaintiff, got himself examined as PW-1 and six witnesses as PWs-2 to 7. Ex.P.1 to 31 were marked. The defendants examined defendant Nos.1 and 2 as DW-1 and DW-2 and one more witness as DW-3 and Ex.D.1 to Ex.D.36 were marked. The learned trial Judge on assessing the evidence on record both oral and documentary was of the view that the plaintiff has failed to prove the execution of the Will. In so far as the possession is concerned, he has recorded a finding that the defendants have proved that they have perfected their title in respect of the suit schedule property by virtue of law of adverse possession inasmuch as they continued to be in possession for more than 12 years. Aggrieved RFA No.1010/2001 : 15 : by the said judgment and decree as observed, the plaintiff is in appeal.
5. Sri.S.L.Matti, learned counsel appearing for the plaintiff vehemently submits that it was not open for the learned trial Judge to record a finding with respect to the Will executed by Smt.Chigateri Gundamma on 09.01.1968 inasmuch as Will can be contested only by such persons who have been denied right in the suit schedule property. He further submits that a Will changes the natural course of succession. It is not a case where any other legal heir of Smt.Chigateri Gundamma is claiming title to the property inasmuch as the Will of the year 1968 has stood the test of time for over a period of 20 years. He further submits that the evidence does not disclose that the defendants have perfected their title by adverse possession. He submits that it is their specific averment in the pleading that the plaintiff was dispossessed in the year 1996 and the suit RFA No.1010/2001 : 16 : is immediately filed. Hence, the question of defendants being in continuous possession over a period of 12 years so as to perfect their title by adverse possession does not arise at all. He further submits that the defendants have denied the execution of the Will itself which would necessarily mean that they deny the title of the plaintiff. Hence, in the circumstances, the question of defendants claiming title by adverse possession does not arise.
6. Sri.Vinay S.Koujalagi, learned counsel appearing for the defendants submits that Manasali Bhadrappa or his legal heirs were not dispossessed from the suit property at any point of time. He submits that the recital in the sale deed itself discloses that they were put in possession and the earlier suit instituted by the reversioners was only for the purpose of declaration that the sale is not valid and was not for legal necessity and they have not sought for possession. In the circumstances, he submits that the defendants have RFA No.1010/2001 : 17 : perfected their title by adverse possession. In so far as the Will is concerned, he submits that indeed the defendants are not in any way related to Smt.Chigateri Gundamma. Hence, the validity or otherwise of the Will will be of no consequence in so far as they are concerned.
7. I have given my anxious consideration to the submissions made by the learned counsel appearing for the parties. The following points would arise for consideration:
i) Whether the learned trial Judge could have recorded a finding that the Will executed by Smt.Chigateri Gundamma in favour of plaintiff is not proved?
ii) Whether the judgment and decree non-
suiting the plaintiff with respect to the suit schedule property on the ground of adverse possession warrants interference? RFA No.1010/2001 : 18 :
8. Point No.1: In so far as the execution of the Will is concerned, the plaintiff who is examined as PW-1 has deposed in examination-in-chief that he has produced the registered Will executed by the testator i.e., Smt.Chigateri Gundamma. The said Will is executed n the year 1968. In his evidence, he would depose in the cross-examination that his grandfather J.Hanumantharao had taken initiative of completion of Ex.P.21. Further, he has specifically admitted and the said admission would read as follows:
"It is true to suggest that on the date of the execution of Ex.P.21. Smt. Chigateri Gundamma was not in sound dispossession of mind due to her old age and weakness. Further it is true that as Smt. Chigateri Gundamma was old, his grandfather, Hanumantha Rao was looking after the estate of Smt. Chigateri Gundamma."RFA No.1010/2001 : 19 :
I am of the view that the learned trial Judge has not considered the entire evidence on record. The said deposition which is extracted by the learned trial Judge to my mind runs slightly contrary to the original records. Indeed, a perusal of the original records and the deposition discloses that the alphabet 'n' is missing inasmuch as if the sentence is read in the proper context, it would read as under:
"It is not true to suggest that on the date of the execution of Ex.P.21, Smt.Chigateri Gundamma was not in sound dispossession of mind due to her old age and weakness. It is true that as Smt. Chigateri Gundamma was old, my grandfather Hanumantha Rao was looking after the estate of Smt. Chigateri Gundamma. It is true that my grandfather Hanumantharao used to get filed applications and other things on behalf of Smt. Chigateri Gundamma. I do not know on some occasions my grand father use to get the RFA No.1010/2001 : 20 : L.T.M. of Smt. Chigateri Gundamma and giving the applications to the concerned authorities."
9. A perusal of paragraph 28 of the evidence and the deposition of PW-1 clearly discloses that the alphabet 'n' is missing and if it is read in the context in which the evidence is recorded, it is required to be read as 'it is not true to suggest'. Indeed, the only reason for the learned trial Judge to discredit the Will is on the sole sentence which is extracted by me indicating that Smt. Chigateri Gundamma was not in a sound and disposition of mind.
10. Apparently, the Will is of the year 1968. All the attesting witnesses to the Will are no longer alive. But, however, in compliance of Section 68 of the Evidence Act, a Will is required to be proved by examining one attesting witness and if the said attesting witnesses are not alive, Section 69 and 70 of the Evidence Act RFA No.1010/2001 : 21 : provides for exceptions in relation thereto would be attracted.
11. The plaintiff has examined PW-3. PW-3 is the son of a bond writer. He would depose that his father Gopala Rao is no more. He died about 2 years prior to the recording of his evidence. He was writing the documents and he was resident of Kottur. PW-3 in no uncertain terms would identify the handwriting of his father and he has seen the signature of his father writing and signing as such he is in a position to identify his handwriting and signature on the Will which is Ex.P.21. He would depose in the following terms:
"Now I see Ex.P.21 it is in the hand writing of my father. Ex.P.21 contains signature of my father. Now I see the signature and the same is marked at Ex.P.21 (b). I am residing in Kottur since 40 to 42 years. I have seen the suit schedule property."RFA No.1010/2001 : 22 :
12. A perusal of the cross-examination indicates that nothing damaging or detrimental to the interest of the plaintiff is elicited or for that matter the evidence recorded in examination-in-chief is discredited. A perusal of the cross-examination discloses that it practically centers around the possession in respect of the suit schedule properties and not in respect of the Will.
13. PW-4 is another witness who recognizes the signature of attesting witness Chidambararao. He would depose that his father died about 7 years back and he was working as stamp vendor and he has seen his father's signature and he identifies his father's signature on Ex.P.21 and it is marked as Ex.P.21 (c). He would also assert that he has seen his father signing and also he has seen his handwriting. He was also cross- examined.
RFA No.1010/2001: 23 :
14. A perusal of the cross-examination once again discloses that it is not in respect of the defendants' possession or the plaintiff's possession in respect of the suit schedule property inasmuch as there is no serious cross-examination with reference to Ex.P.21. Thus, to my mind, the proviso to Section 68 of the Evidence Act has been complied. Proviso to Section 68 of the Evidence Act would read as under:
" Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."
15. A reading of the said proviso discloses that to prove a Will, an attesting witness is always to be examined who is required to speak about the signature RFA No.1010/2001 : 24 : on the document and identify the signature. In the absence of the availability of the attesting witness inasmuch as they are not alive, Section 69 of the Evidence Act provides as to how a Will is required to be proved. I am of the view that the plaintiff has satisfied the test laid down for proving of the Will.
16. The law of limitation debars the remedy of plaintiff but does not extinguishes his right. But there are some cases in which the remedy becoming barred by limitation, the right itself is extinguished like the one contemplated under Section 27 of the Limitation Act. The law of limitation has to be distinguished from the law of prescription and a person in possession.
17. It is settled by catena of decisions that any and every circumstance is not a suspicious circumstance. Even in a case where active participation and execution of the Will by the propounders/beneficiaries was there, it RFA No.1010/2001 : 25 : has been held that that by itself is not sufficient to create any doubt either about the testamentary capacity or the genuineness of the Will. It has been held that the mere presence of the beneficiary at the time of execution would not prove that the beneficiary had taken prominent part in the execution of the Will. This is the view taken by this Court in Sridevi and others Vs. Jayaraja Shetty and others. In the said case, it has been held that the onus to prove the Will is on the propounder and in the absence of suspicious circumstance surrounding the execution of the Will proof of testamentary capacity and the proof of signature of the testator as required by law will not be sufficient to discharge the onus. In case, the person attesting the Will alleges undue influence, fraud or coercion, the onus will be on him to prove the same and that under what suspicious circumstances, have to be judged in the facts and circumstances of each particular case. RFA No.1010/2001 : 26 :
18. Incidentally, it is also to be noticed that except for the defendants, no one is contesting the Will inasmuch as if at all the Will is required to be contested, it must be by the persons who have been denied a share or who have been sidelined by such a Will which is not the case here. In fact, Smt.Chigateri Gundamma did not have any children who could have certainly questioned the Will in favour of the plaintiff. If the circumstances as narrated are satisfied, I am of the view that the Will is deemed to have been proved. In the case on hand, there are no such circumstance which would compel this Court to hold that the Will is not genuine or invalid for want of examination of the attesting witnesses. The fact that Smt.Chigateri Gundamma was in the advanced age does not necessarily by implication lead to a conclusion that she was not in a sound disposition of state of mind. Hence, I am of the view that on a stray sentence, the learned RFA No.1010/2001 : 27 : trial Judge could not have recorded a finding that the Will Ex.P.21 is not proved. On that score, the said finding warrants interference.
19. Point No.2: Indeed, the specific case made out by the plaintiff is that the property originally belonged to one J.Hanumanthrao and after his death, his widow Hanumavva succeeded to the property and she has executed a sale deed in favour of Manasali Bhadrappa on 15.08.1924. It is not in dispute inasmuch as this is the very case of the plaintiff that the reversioners had filed a suit for setting aside the sale deed and the sale deed has been set aside inasmuch as it was not for legal necessity and the right of J.Hanumavva was only a life interest and nothing more or nothing less. The said judgment and decree in O.S.No.133/1925 was carried in Appeal in R.A.No.29/1927 and the said appeal was also dismissed. Thus, the title if any of Manasali Bhadrappa RFA No.1010/2001 : 28 : stood extinguished pursuant to the judgment and decree passed in O.S.No.133/1925 on 06.12.1926.
20. To ascertain whether Section 27 of the Limitation Act is applicable to the given set of circumstances, one is required to look into the original sale deed dated 15.08.1924 which is marked as Ex.D.7. A perusal of the sale deed discloses that pursuant to the sale deed, Manasali Bhadrappa was put in possession. It is useful to extract the recital with reference to possession which would read as follows:
"¸ÀzÀj PÀæAiÀÄ zsÀ£ÀªÀ£ÀÄß £Á£ÀÄ vÉUÉzÀÄPÉÆAqÀÄ ªÀĤAiÀÄ£ÀÄß ¤ªÀÄä ¸Áé¢üãÀ ªÀiÁr¬ÄgÀÄvÉÛãÉ. ¬ÄzÀgÀ°è ªÀÅAmÁzÀ d®vÀgÀÄ ¤¢ü ¤PÉëÃ¥Á ¥ÁµÁuÁ¢ ªÀÄÄAvÁzÀPÀÆÌ zÁ£À «PàæAiÀiÁ¢UÀ½UÀÆ ¤ÃªÀÇ ¤ªÀÄä ªÁgÀ¸ÀgÀÄ ¨ÁzsÀågÉ ºÉÆvÀÄð £À£ÀUÀÆ £À£Àß AiÀiÁªÀ «zsÀªÁzÀ ªÁgÀ¸ÀjUÀÆ ¨ÁzsÀåvÉ ¬ÄgÉÆÃzÀÄ ¬Ä¯Áè."
21. A perusal of Ex.D.7 clearly discloses that pursuant to the sale deed, Manasali Bhadrappa was put RFA No.1010/2001 : 29 : in possession. The judgment and decree passed in original suit instituted by the reversioners of J.Hanumawwa is to be found at Ex.P.1. The relief sought for are extracted which would read as follows:
" This is a suit for a declaration that the alienations by the 1st defendant are invalid and do not bind the plaintiffs the reversioners, beyond the lifetime of 1st defendant and for recover the cost of the suit from defendants."
22. The pleadings are extracted in the said judgment. Manasali Bhadrappa was defendant No.4 in the said suit and the averment and the pleadings clearly disclose that the 1st defendant therein i.e., Hanumavva had put Manasali Bhadrappa in possession and enjoyment of item Nos.6 to 10 and 14 of schedule 'B' properties. She had no right to alienate the property.
23. A perusal of the judgment and decree so also the pleadings discloses that the said suit was only for RFA No.1010/2001 : 30 : declaration of title and is not for possession. If the pleadings and the sale deed are read in tandem, it is clear that pursuant to the sale deed, Manasali Bhadrappa was put in possession. The present suit is one for declaration as well as of title and also for possession on the premise that the plaintiff was dispossessed in the year 1996. The dispossession certainly would arise if he was put in possession. No tangible evidence is forthcoming either oral or documentary to establish that pursuant to the judgment and decree passed in O.S.No.133/1925, the plaintiff or the predecessor i.e., Smt.Chigateri Gundamma was put in possession. There is also nothing on record to show that either Shanabhog Hanumantha Rao or Shanbhog Shiva Shankara Rao have executed the decree. Apparently, a person who is in possession is required to be dispossessed with due process of law. Indeed, the option was always open for the plaintiff or the RFA No.1010/2001 : 31 : predecessor to take possession of the suit schedule property by amending the prayer column in the earlier suit and take possession but unfortunately that has not been done. In the absence of any material to show that Manasali Bhadrappa was dispossessed in a manner known to law, it is required to be presumed that the possession of Manasali Bhadrappa continued to be adverse to the interest of the plaintiff as well as to that of the predecessors.
24. Indeed, an effort was made before me by the learned counsel for the plaintiff that under Article 65 of the Limitation Act that the defendants are required to prove that they are in possession of the suit schedule property adverse to the interest of the plaintiff continuously for a period of 12 years. Indeed, the law stated by him is correct. In the case on hand, the moment sale deed in favour of Manasali Bhadrappa was set aside, his possession becomes adverse to that of RFA No.1010/2001 : 32 : Shanabhog Hanumantha Rao and Shanbhog Shiva Shankara who were the plaintiffs in the earlier suit and subsequently to Smt.Chigateri Gundamma who succeeded to the property.
25. Indeed Section 27 of the Limitation Act, 1963 would read as under:
"27. Extinguishment of right to property -
At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished."
26. A perusal of Section 27 of the Limitation Act discloses that the right to a property stands extinguished if the suit for possession is not instituted in a period prescribed by the Act. Undoubtedly, this would partake the character of perfecting title by adverse possession. Indeed, the defendants are required to show that they have perfected their title by adverse RFA No.1010/2001 : 33 : possession and they have to prove that they are in continuous possession of the property uninterruptedly for the statutory period of 12 years.
27. Indeed, a perusal of the pleadings and evidence would clearly disclose that notwithstanding the judgment and decree passed in O.S.No.133/1925, Manasali Bhadrappa was not at all dispossessed from the suit property by due process of law. Indeed, a perusal of the plaint also discloses that the claim of the plaintiff that he has also perfected his title by adverse possession in the event the Will is not proved. I am of the view that the plaintiff has lost his right to claim possession of the suit schedule property inasmuch as his right stands extinguished. Indeed, a similar if not identical case fell for consideration before this Court in the case of THIMAIAH VS. MADEGOWDA (AIR 1989 KAR 83). This Court has observed thus:
RFA No.1010/2001: 34 :
" The fact that being unable to obtain possession a suit had to be filed for recovering possession from the defendant, it is needless to add, only emphasizes the adverse nature of possession of the properties by the defendant."
28. The Privy Council in the case of SUBBAIYA PANDARAM VS. MOHAMED MUSTAPHA MARACAYAR (AIR 1923 PC 175) with reference to the decision of the Bombay High Court in the case of DAGADABAI VS. SAKHARAM (AIR 1948 BOM. 149) has observed that"
" At the moment when it was passed, the possession of the purchaser was adverse and the declaration that the property had been properly made subject to a trust disposition and therefore ought not to have been seized did not disturb or affect the quality of his possession, it merely emphasized the fact that it was adverse. No further step was taken in consequence of that declaration RFA No.1010/2001 : 35 : until the present proceedings were instituted, when it was too late."
29. The principle underlying this decision has been accepted and followed widely by the courts. Suffice in this context to refer to the division bench ruling of Bombay High Court which would read as under:
" Whether a decree for possession in favour of the plaintiff does or does not interrupt adverse possession is purely a question of fact to be decided, on the circumstances of each case, if the decree does not in fact result in the defendant giving up possession of the property or having possession of the property taken from him, it cannot be said that it has interrupted possession; nor can it in law affect the nature of the possession, unless it does so in fact. A decree for possession followed by an unsuccessful execution cannot be deemed as a matter of law to have the effect of either interrupting possession or altering its character."
RFA No.1010/2001: 36 :
30. A decree merely declaring the plaintiffs title to the property involved in the suit will not interrupt the defendant's adverse possession of that property and if such possession is allowed to continue undisturbed for a period of 12 years or more from the commencement of such possession, the defendant will acquire a title by prescription. The original owner's cause of action for a suit to recover possession of the property will arise on the date of the commencement of the defendant's adverse possession.
31. In the case on hand, it has to be noticed that the title of the defendants has been negatived by the courts below in the year 1927. Indeed, neither the plaintiff nor the predecessors have made any effort to take possession of the property on the basis of the title declared by the courts or for that matter when the Will was executed in favour of the plaintiff in the year 1968. RFA No.1010/2001 : 37 : Indeed, for the first time, a suit is filed for possession in the year 1996 on the ground that the plaintiff was dispossessed in the year 1996.
32. Indeed, an effort was made by the learned counsel for the plaintiff by submitting that the plaintiff was in possession was dispossessed in the year 1996. He would press into service certain receipts for having paid the tax. Ex.P.7 to Ex.P.10 are the receipts for having paid the tax. But, however, a perusal of the said receipts discloses that the amount has been paid by the plaintiff on behalf of Manasali Bhadrappa i.e., the original purchaser as against whom the suit was filed. I am of the view that that would be of little help to the plaintiff. But, however, the defendants have produced sufficient documents to show that they have paid the taxes for the years even prior to their alleged coming into possession in the year 1996 as stated in the plaint. Ex.D.8 is the Encumberance Certificate between RFA No.1010/2001 : 38 : 01.04.1924 to 06.03.1990. It discloses that a sale deed is executed on 15(25).08.1924 and the sale deed is executed by J.Hanumawwa in favour of Sangameshwar.
33. Apparently, even pursuant to the said judgment and decree passed by the Court way back in the year 1927, no change has taken place in the Encumberance records also which would strengthen the fact that Manasali Bhadrappa continued to be in possession of the suit schedule property. Ex.D.9 is also a general receipt disclosing that Manasali Kottrappa Shetty i.e., brother of Manasali Bhadrappa had paid the taxes so also Ex.D.10 dated 31.03.1976, Ex.D.11, Ex.D.12 dt.30.07.1981, Ex.D.13 dt.27.11.1989, Ex.D.14 dated 15.10.1983, Ex.D.15 dt.29.05.1991 and Ex.D.16 dt.12.01.1993.
34. A perusal of these tax receipts clearly discloses that the defendants or their predecessors have been paying the taxes in respect of the property in question. RFA No.1010/2001 : 39 :
35. Indeed, Section 27 of the Limitation Act fell for consideration before the Apex Court in the case of BAILOCHAN KARAN VS. BASANT KUMARI NAIK AND AOTHER (AIR 1999 SC 876). The Apex Court while considering the scope of Section 27 and Article 60 was of the view that since the suit was not filed within three years from the date of attaining the majority, the right to file a suit extinguished. The case on hand is no different inasmuch as the right to seek possession accrued to the plaintiff or his predecessors in the year 1927 and they did not seek possession in respect of the suit schedule property. Hence, I am of the view that the right of the plaintiff to seek possession stood extinguished.
36. If Section 27 is read with Articles 64 and 65 of the Limitation Act the purchasers remaining in possession from the date of sale till they were RFA No.1010/2001 : 40 : dispossessed and were in possession for a period more than 12 years, the purchasers could be said to have perfected their title by prescription against the plaintiffs. The case is identical to the case on hand inasmuch as the sale in favour of Manasali Bhadrappa having been set aside, he and his predecessors continued to be in possession for an interrupted period of 12 years. The suit itself to my mind to seek possession was barred by limitation.
37. Having said so, I am of the view that the finding of the learned trial Judge on the question of adverse possession cannot be faulted but not for the reasons stated by him. Having said so, the following order is passed:
i) the appeal is allowed in part,
ii) the finding and judgment and decree
passed by the learned trial Judge on the RFA No.1010/2001 : 41 : question of Will is set aside and the Will is deemed to have been proved,
iii) the finding recorded by the learned trial Judge on the question of adverse possession stands confirmed.
Appeal stands disposed of accordingly.
SD/-
JUDGE Jm/-