Karnataka High Court
Sannali Hanumanthappa S/O Sannaleppa vs Siddappa S/O Yenagi Virupaakshappa on 23 October, 2024
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NC: 2024:KHC-D:15430
RSA No. 5214 of 2013
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 23RD DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
REGULAR SECOND APPEAL NO. 5214 OF 2013 (DEC)
BETWEEN:
SANNALI HANUMANTHAPPA S/O. SANNALEPPA,
AGE: 59 YEARS, OCC. AGRICULTURIST,
R/O. HANASI VILLAGE, TQ. HAGARIBOMMANAHALLI,
TALUK AND DIST: BELLARY-583212.
...APPELLANT
(BY SRI. SANTOSH B. MALLIGAWAD, ADVOCATE)
AND:
1. SHRI SIDDAPPA S/O. YENAGI VIRUPAAKSHAPPA,
Digitally
signed by
VISHAL
AGE: 59 YEARS, OCC. AGRICULTURIST,
VISHAL NINGAPPA
NINGAPPA PATTIHAL R/O. HANASI VILLAGE, TQ. HAGARIBOMMANAHALLI,
PATTIHAL Date:
2024.11.05
11:53:40
TALUK AND DIST: BELLARY-583212.
+0530
2. SMT. JAYAMMA W/O. BHOJARAJA,
AGE: 49 YEARS, OCC: HOUSEHOLD,
R/O. HANASI VILLAGE, TQ. HAGARIBOMMANAHALLI,
TALUK AND DIST: BELLARY-583212.
...RESPONDENTS
(BY SRI. LAXMAN B. MANTAGANI AND
SRI. PUNEET BADIGER, ADVOCATE FOR R1 AND R2)
THIS RSA IS FILED U/S.100 OF CPC.,PRAYING TO SET ASIDE THE
JUDGMENT AND DECREE DATED 24.11.2012 IN R.A.NO.9/2012 PASSED BY
THE ADDITIONAL SENIOR CIVIL JUDGE AND J.M.F.C HOSPETH CONFIRMING
THE JUDGMENT AND DECREE DATED 31.10.2011 IN O.S.NO.39/2007 PASSED
BY THE CIVIL JUDGE AND J.M.F.C. HAGARIBOMMANAHALLI BY DECRYING
THE SUIT OF THE PLAINTIFF AS IN THE ENDS OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
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NC: 2024:KHC-D:15430
RSA No. 5214 of 2013
ORAL JUDGMENT
The present second appeal by the plaintiff assailing the judgment and decree dated 24.11.2012 in R.A. No.9/2012 on the file of the Additional Senior Civil Judge and JMFC, Hospet (hereinafter referred to as the 'First Appellate Court' for short) confirming the judgment and decree dated 31.10.2011 passed in O.S. No.39/2007 on the file of the Civil Judge and JMFC., H.B.Halli (hereinafter referred to as the 'trial Court' for short), wherein, the suit for declaration and possession came to be dismissed as barred by limitation.
2. Brief facts of the case are that, suit came to be filed for declaration to cancel the registered sale deeds executed by Samadevva @ Sannadevva in favour of the Yenigi Virupakshappa are null and void and to declare that the plaintiff is the owner of the suit property and further sought direction to the defendants to evict the plaint schedule property and hand over the possession to the plaintiff. The case of the plaintiff is that, he is a grandson of -3- NC: 2024:KHC-D:15430 RSA No. 5214 of 2013 one Kare Hanumavva who is the absolute owner of the schedule property under the assignment by the Government of Mysore in the year 1945 and since then the schedule property is standing in her name till her death. It is the case of the plaintiff that Kare Hanumavva was in peaceful possession and enjoyment of the suit property and after her death, her son Sannallappa the father of the plaintiff was in possession of the suit property. It is the specific case of the plaintiff, that neither Kare Hanumavva nor his father Sannallappa had executed any registered sale deed in favour of the defendants. It is further contended that the father of defendant No.1 and father-in-law of defendant No.2 created a document called the registered sale deed by playing fraud, stating that he has purchased the plaint schedule property from one Sanadevva @ Samadevva and he is the owner of the suit property. The plaintiff contended that the suit property is standing in the name of Virupakshappa and after his death, the names of defendants No.1 and 2 have been mutated. The defendants without any valuable right over the suit property are not -4- NC: 2024:KHC-D:15430 RSA No. 5214 of 2013 entitled to be in possession and hence, the suit for declaration to cancel the registered sale deed and for possession.
3. On notice, the defendants appeared and filed their written statements inter alia contending that the suit schedule properties belonged to Sanadevva @ Samadevva W/o.Harijana Sannallappa who sold the suit property to Yenagi Virupakshappa for valuable sale consideration under registered sale deed dated 28.01.1967, pursuant to which Virupakshappa is in possession and enjoyment of the suit property. Further, on death of Virupakshappa, his five sons have partitioned the property and the suit property is fallen to the share of Siddappa (defendant No.1) and Bhojaraja (husband of defendant No.2) and they are in actual possession and enjoyment.
4. The trial Court based on the pleadings framed the following issues:
"1) That for the reasons assigned in para 3 & 4 of the plaint, Whether the plaintiff proves that the -5- NC: 2024:KHC-D:15430 RSA No. 5214 of 2013 plaint schedule property, was originally assigned by the then Government of Mysore in the year 1943 in favour of a lady by name Kare Hanumavva and that all the documents were in the name of said late Kare Hanumavva ?
2) Whether the plaintiff further proves that, subsequent to the death of said Kare Hanumavva it is her son by name Sannalappa the father of the plaintiff herein had succeeded the plaint schedule property and that neither the Kare Hanumavva nor the Sannalappa have alienated the suit schedule property in favour of any body?
3) Whether the plaintiff further proves that, the father of the first defendant and the father-in-law of the second defendant had created and fabricated a document of registered sale deed by playing fraud so as to prove the fact that, a lady by name Samadevva had executed the sale deed in favour of Enigi Virupakshappa?
4. Whether the plaintiff proves that, there had been conciliation in this behalf and that conciliators directed the defendant to vacate and hand over the vacant possession of plaint schedule property to the plaintiff as mentioned in para 6 of the plaint?
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NC: 2024:KHC-D:15430 RSA No. 5214 of 2013
5. That for the reasons assigned in para 10 of writtenstatement, whetherthe defendants prove that, the plaint schedule property originally belonged to a lady by name Samadevva wifeofSannalappa and that the said Samadevva sold the suit schedule property in favour of Enigi Virupakshappa by virtue of registered sale deed dated 28-11-1967 and that since then, it was Virupakshappa who had been in possession and enjoyment of the property?
6. Whether the defendant further proves that, by virtue of the family partition, which took place among the children of said Virupakshappa, the plaint schedule property has fallen to the share of late Bhojappa and Siddappa, and that since the death of Bhojappa and his widow Jayamma and siddappa have been in possession and enjoyment of the suit land?
7. Whether the plaintiff is entitled for the relief of possession as prayed for together with costs of the suit?
8. What order or decree?
ADDL. ISSUES
1) Whether the defendant proves that, the suit of plaintiff itself not maintainable without the relief -7- NC: 2024:KHC-D:15430 RSA No. 5214 of 2013 of declaration as pleaded in the addl, written statement?
2) Whether the defendant further proves that, the suit is barred by law of limitation?"
5. In order to substantiate their claim, the plaintiff examined himself as PW1, four witnesses were examined as PWs.2 to 5 and marked documents at Exs.P1 to P16. On the other hand, defendant No.1 examined himself as DW1, defendant No.2 examined herself as DW4, two witnesses were examined as DWs.2 and 3 and marked documents at Exs.D1 to D9.
6. The trial Court based on the pleadings, oral and documentary evidence arrived at a conclusion that the plaintiff has proved that,
(i) the plaint schedule property was originally assigned by the Government of Mysore in the year 1943 in favour of Kare Hanumavva and that the name of Kare Hanumavva has been entered in the revenue records;-8-
NC: 2024:KHC-D:15430 RSA No. 5214 of 2013
(ii) The plaintiff has proved that on death of Kare Hanumavva, her son Sannallappa, the father of the plaintiff has succeeded to the schedule property and neither Kare Hanumavva nor son Sannallappa have alienated the suit property;
(iii) The plaintiff proved that the father of defendant No.1 and father-in-law of defendant No.2 have created a fabricated document termed as registered sale deed. Answering all the issues in favour of the plaintiff about declaration of title, however, on additional issue No.2, regarding limitation, the trial Court arrived at a conclusion that the suit of the plaintiff is barred by limitation and dismissed the suit of the plaintiff.
7. Aggrieved, the plaintiff preferred appeal before the First Appellate Court.
8. The First Appellate Court, in the absence of any appeal by the defendants challenging the findings recorded holding that the plaintiff is the absolute owner and entitled for declaration of title, in the appeal preferred by the -9- NC: 2024:KHC-D:15430 RSA No. 5214 of 2013 plaintiff against the dismissal of the suit on the ground of limitation, held that the plaintiff has failed to prove his ownership over the suit property and further confirmed the judgment and decree of the trial Court on additional issue No.2 holding that the suit of the plaintiff is barred by limitation.
9. Aggrieved, the plaintiff is before this Court in the regular second appeal.
10. This Court while admitting the appeal on 06.02.2024 has framed the following substantial questions of law:
"a) When the first appellate court had answered issue No.5 against the defendant, was it correct in upholding the judgment of the trial court dismissing the suit more particularly in view of the first principle of law that possession follows title in respect of agricultural land?
b) whether the suit filed by the plaintiff was barred under Article 65 of the Limitation Act, 1965?"
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NC: 2024:KHC-D:15430 RSA No. 5214 of 2013
11. Sri.Santosh B.Malligawad, learned counsel for the appellant and Sri.Laxman T.Mantagani, learned counsel for the respondents have been heard on the substantial questions of law framed by this Court.
12. Learned counsel for the appellant would vehemently contend that the Courts below have totally fell in error in dismissing the suit of the plaintiff as barred by limitation, without considering that the suit based on title for possession and once the title has been established, unless the defendants to prove adverse possession, the plaintiff cannot be non-suited and without considering the settled proposition of law, the Courts below have erroneously dismissed the suit as barred by limitation. Learned counsel further contends that the trial Court held that the title of the plaintiff is proved while the First Appellate Court in the appeal preferred by the plaintiff has arrived at a conclusion that the plaintiff is not the owner of the suit property in light of the long standing possession of the defendants and revenue entries in their favour, which is
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NC: 2024:KHC-D:15430 RSA No. 5214 of 2013 totally erroneous and the judgment of the Courts below deserves to be set aside and the substantial question of law framed by this Court needs to be answered in favour of the appellant.
13. In support of his contention, learned counsel for the appellant has placed reliance on the following decision:
i. Judgment of the Co-ordinate Bench of this Court in the case of Mahadev Vs. Kamalabai and Others1 (Mahadev) disposed on 22.06.2024.
ii. Sharat @ Sharachandra s/o Dattappa
Choudhary since dead by his LRs. Vs.
Gangadharappa s/o Khandappa
Choudhary since dead by his LRs. And
Others2 (Sharat @ Sharachandra)
disposed on 05.12.2023.
iii. Gundamma deceased by LRs' Vs.
Kariyappa and Others3(Gundamma)
disposed on 24.06.2024.
1
RSA No.5186/2009.
2
RSA No.5004/2009 c/w RSA No.5003/2009.3
RSA No.7224/2011.
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NC: 2024:KHC-D:15430 RSA No. 5214 of 2013
14. Per contra, learned counsel for the respondents would contend that the Courts below have rightly arrived at a conclusion that the suit of the plaintiff is barred by limitation in light of the defendant being in possession of the suit property and the plaintiff having known that the defendants are in possession for past 30 years and no steps been taken by the plaintiff. Learned counsel submits that the concurrent findings of facts recorded by the Courts below does not warrant any interference under Section 100 CPC and the substantial question of law framed by this Court needs to be answered against the appellants.
15. Before answering substantial question of law No.1, substantial question of law No.2 is taken for consideration, which reads as under:
"2.Whether the suit filed by the plaintiff was barred under Article 65 of the Limitation Act, 1965?"
16. In the suit, the plaintiff has sought for two reliefs one for declaration of title and another for recovery of
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NC: 2024:KHC-D:15430 RSA No. 5214 of 2013 possession, for the suit for declaration of title the limitation is three years under Article 58 of the Limitation Act, 1965 (herein after referred to as 'the Act' for short) and the time from which the limitation begins is when the right to suit first accrues, and for the suit for recovery of possession of an immovable property or any interest thereon, based on title, limitation is 12 years under Article 65 of the Act and the time from which the period of limitation begins to run is the time when the possession becomes adverse to the plaintiff, and thus in suit for declaration with possession, the period of limitation is 12 years available to the plaintiff under Article 65 of the Act and the question of instituting a suit for declaration and possession generally would arise only when there is an actual disturbance to the possession and 12 years period of limitation for relief of possession is from the time when the possession of the defendants becomes adverse to the plaintiff, thus the burden would be on the defendants to prove that they had acquired title by adverse possession. As the prayer of the plaintiff is for
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NC: 2024:KHC-D:15430 RSA No. 5214 of 2013 declaration and for possession, the limitation for filing a suit for possession on basis of title is 12 years.
17. The defendants claimed their title based on the sale deed executed by Samadeva @ Sannadevva and contend that they are put in possession and enjoyment of the same. While answering the additional issue No.2 by the trial Court, it was held that, PW1 has admitted in his cross- examination that 30 years ago itself, he knew that the suit land belonging to him is in possession of defendants and he having not taken steps against the defendants and also having admitted that since 50 years, the defendants are in possession of the suit land and no efforts made by the plaintiff to seek cancellation of the sale deed or claiming right by way of declaration, held that the suit of the plaintiff is hopelessly barred by law of limitation, which finding was confirmed by the First Appellate Court.
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NC: 2024:KHC-D:15430 RSA No. 5214 of 2013
18. The Apex Court in the case of Saroop Singh Vs. Banto and Others4 (Saroop Singh) wherein at paragraph Nos.28 & 29 held as under:
"28. The statutory provisions of the Limitation Act have undergone a change when compared to the terms of Articles 142 and 144 of the schedule appended to the Limitation Act, 1908, in terms whereof it was imperative upon the plaintiff not only to prove his title but also to prove his possession within twelve years, preceding the date of institution of the suit. However, a change in legal position has been effected in view of Articles 64 and 65 of the Limitation Act, 1963. In the instant case, plaintiff-respondents have proved their title and, thus, it was for the first defendant to prove acquisition of title by adverse possession. As noticed hereinbefore, the first defendant- Appellant did not raise any plea of adverse possession. In that view of the matter the suit was not barred.
29. In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date defendant's possession becomes adverse. ....."
19. The Apex Court held that in terms of Article 65 of the Act, the starting point of limitation does not commence from the date when the right of ownership arises to the 4 (2005) 8 SCC 330
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NC: 2024:KHC-D:15430 RSA No. 5214 of 2013 plaintiff but commences from the date the defendants' possession becomes adverse. "Animus possidendi" is one of the ingredients of adverse possession. Though the defendants in the present case have not taken a specific plea of adverse possession, the Courts below arrived at a finding that the defendants are in possession for past 30 years, non-suits the plaintiff on the ground of limitation.
20. The Apex Court further in the case of C. Natarajan Vs. Ashim Bai and Another5 (C. Natarajan) has observed that, if the plaintiff has filed the suit claiming title over the suit property in terms of Articles 64 and 65 of the Act, burden would be on the defendant to prove that he has acquired title by adverse possession.
21. It is settled proposition of law when the plaintiff is seeking to recover possession of suit property based on the title asserted by the plaintiff. In that context, it is relevant to note that in a suit based on title for possession once the title is established, unless the defendants prove 5 AIR 2008 SC 363
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NC: 2024:KHC-D:15430 RSA No. 5214 of 2013 the possession to be adverse to the knowledge of the plaintiff, the plaintiff cannot be non-suited. In the instant case, the trial Court held that the plaintiff has established his title on the basis of Ex.P16 and other evidence; the burden was on the defendants to prove that they were in possession though may be under a registered sale deed, but they had to prove that it was adverse to the knowledge of the plaintiff, having not proved the same, the plaintiff cannot be non-suited on the ground of limitation.
22. This Court in Sharat @ Sharatchandra's case disposed off on 5th December 2023 has taken a similar view placing reliance on the decision of the Apex Court in the case of C. Natarajan and Saroop Singh stated supra and held that merely because a person continues in possession for any length of time, the said person would not acquire title. The Co-ordinate Bench of this Court in the case of Mahadev in an identical circumstances placing reliance on the decision of the Apex Court has held that the plaintiff having proved his title to the suit property, in the
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NC: 2024:KHC-D:15430 RSA No. 5214 of 2013 absence of the defendants proving that they have perfected their title by way of adverse possession, the plaintiff cannot be non-suited. The said decision placed reliance by the learned counsel for the appellant is squarely applicable to the present facts. The Courts below have totally fell in error in holding that the suit of the plaintiff is barred by limitation and accordingly, the substantial question of law No.(b) is answered in favour of the appellant holding that the suit of the plaintiff is not barred under Article 65 of the Act.
23. Regarding substantial question of law No.(a), the trial Court under issue Nos.1 to 4, which was regarding the plaintiff's title over the suit schedule property derived from Kari Hanumavva, the grandmother of the plaintiff held that considering the oral evidence and more particularly Ex.P16, Diaglott Registrar, which clearly shows that the suit property originally granted to Kari Hanumavva, the grandmother of the plaintiff, pursuant to which RTC extract were mutated in the name of the Kari Hanumavva. On her death her son Sannamallappa, the name of the father of the
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NC: 2024:KHC-D:15430 RSA No. 5214 of 2013 plaintiff was entered and on his death, the name of the plaintiff is entered in the revenue records. In corroboration with Ex.P16, PW1 to PW3 and PW5 have supported the case of the plaintiff and deposed about the grant in favour of Kari Hanumavva. The defendants on the other hand claim title over the suit schedule property in light of the sale deed executed by Samadeva @ Sannadevva, Samadeva @ Sannadevva being the owner of the suit schedule property is not evidenced by any documents. Ex.P11 is legal notice issued by the plaintiff to defendant and at paragraph No.3, it is stated that the said Samadeva @ Sannadevva did not have any right, title and interest over the suit schedule property and it was never standing in her name and called upon the defendants stating that Samadeva @ Sannadevva under whom the defendants claimed title had no absolute saleable right. Reply notice was issued by the defendants inter alia contending that Sannamallappa, father of the plaintiff has acquired the suit property through succession and he is in possession of the same. The relevant portion of the reply notice is culled out as under:
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NC: 2024:KHC-D:15430 RSA No. 5214 of 2013 "1. The appellants made in para 1 of your notice are some of them are true and some of them are false and hereby denied. The allegations made in para 2 of your notice are false and hereby denied. It is true to state that Sannalappa has acquired the notice schedule property through succession and he is in possession of the same."
(Emphasis supplied)
24. There is no oral or documentary evidence to indicate that Samadeva @ Sannadevva had any right to execute the sale deed in favour of the father of defendant Nos.1 and 2. The trial Court rightly held that the plaintiff has established the title over the suit property; in the appeal preferred by the plaintiff before the First Appellate Court, the First Appellate Court arrived at a conclusion that the plaintiff has failed to prove his ownership over the suit schedule property, only based on the possession of the defendants holding that the defendants are in possession for more than 50 years. The public document produced by the plaintiff at Ex.P16, diaglott, which is the document of title and there is a presumption of correctness of the entries which is equivalent to the resurvey settlement. The First
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NC: 2024:KHC-D:15430 RSA No. 5214 of 2013 Appellate Court has totally fell in error holding that the plaintiff has failed to prove his title over the suit schedule property. Accordingly, the substantial question of law No.(a) framed by this Court is answered holding that the First Appellate Court having answered in favour of the appellant and for the foregoing reasons, this Court pass the following:
ORDER
(i) The Regular Second Appeal is hereby allowed;
(ii) The judgment and decree of the Courts below holding that the suit of the plaintiff is barred by limitation is set aside.
(iii) The suit of the plaintiff is decreed.
(iv) The plaintiff is declared as the absolute owner of the suit schedule property and the plaintiff is entitled for possession.
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(v) The defendants to handover the possession within three months from the date of release of this order.
Sd/-
(JUSTICE K.S.HEMALEKHA) RH - till para 11;
AT - from para 12 to 16;
VNP - From para 17 till end LIST NO.: 2 SL NO.: 22