Dharmappa vs Neelavva

B. Veerappa, J—Plaintiff filed the above writ petition challenging the order dated 07.01.2015 made in M.A. No. 40/2012 on the file of Senior Civil Judge, Ranebennur confirming the order dated 17.11.2012 made in O.S. No. 167/2012 on I.A. No. 1 by the Prl. Civil Judge and I Addl. JMFC, Ranebennur, rejecting the application for temporary injunction.

The plaintiff filed suit for declaration and injunction claiming that originally one Basappa Shivappa Vadeyarhalli, father of plaintiff purchased the suit property along with the father of the defendant jointly through a registered sale deed dated 13.06.1936 from one Malakappa Ningappa Karoor. Ever since the date of purchase, father of plaintiff is in possession of the suit property. It is stated that father of defendant went to Byadagi and started residing there itself and also stated that father of the defendant was in need of money. Therefore, he took amount from the father of the plaintiff at regular intervals. After the death of father of plaintiff, present plaintiff came into possession of the suit property and has been in possession and enjoyment of the suit property from the date of death of plaintiffs father to the knowledge of the defendant and the entire world.

It is also stated that the father of the defendant Ujjappa died on 19.06.1996 and during the lifetime of the father of the petitioner he was never in possession of the suit property. Therefore, he fled he filed suit for declaration based on adverse possession claiming that he is in possession of the suit property from more than 12 years and become owner of the suit property by way of adverse possession, the defendant is no way concerned to the suit property, etc. Plaintiff also filed I.A. No. 1 for temporary injunction along with the plaint reiterating the plaint averments.

The defendant filed objections admitting that originally one Basappa Shivappa Vadeyarahalli, father of plaintiff and father of defendant have purchased the property jointly through registered sale deed. But they denied contention of the petitioner that he is in possession of the property and other plaint averments. The defendant also denied that the plaintiff is in exclusive possession for more than 12 years as alleged. It is the specific case of the defendant that, from the date of purchase of the suit properties, father of the plaintiff and father of the defendant were in possession of the suit properties jointly and after the death of the defendant in 1996 in the state of jointness, the defendant came into possession of the suit property. It is stated that both parties are in joint possession of the suit property but the plaintiff in collusion with the revenue authorities got entered his name only in the revenue records by excluding the name of the defendant and claiming to be the owner of the suit property, however, he did not file any application and did not approach the court. Therefore, sought for dismissal of the application.

After hearing both the parties, the trial Court considering the material evidence on record by its order dated 17.11.2012 dismissed I.A. No. 1 for temporary injunction filed by the plaintiff holding that the plaintiff has not proved his adverse possession as on the date of the suit. Against the said order, the present plaintiff filed M.A. No. 40/2012 before the Senior Civil Judge, Ranebennur, who after hearing both the parties by the impugned order dated 07.01.2015 and dismissed the appeal and confirming the order passed by the trial Court holding that the trial Court passed the discretionary order and no interference was called for. Against the said order, the present writ petition is filed.

I have heard Sri S.B. Hebballi, learned counsel for the petitioner who strenuously contended that the impugned order passed by the Courts below rejecting the application for temporary injunction is without any basis. Both the Courts have failed to notice that the plaintiff is in possession and enjoyment of the property exclusively for more than 12 years and the Courts below also failed to notice that mutation entries in respect of property in question depicts that he is in possession of the suit property as on the date of the suit. Therefore, he sought to set aside the impugned order passed by the Courts below by allowing the writ petition.

I have given my thoughtful consideration to the arguments advanced by the learned counsel for the petitioner and perused the entire material on record.

The trial Court considering the entire material on record specifically recorded a finding that:

"This court perused the application given by the present plaintiff dated 31.10.1994 to the Tahsildar, Ranebennur requesting him to mutate his name in the Record of Rights in his name alone. It is pertinent to note that the plaintiff did not mention the name of the Defendant as co-owner along with him in the application dated 31.10.1994. It appears that on the basis of the application given by the plaintiff dated 31.10.1994 the name of the plaintiff alone is entered in the revenue record although the fathers of the parties have purchased the suit property jointly on 13.6.1936."

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Therefore, the trial Court recorded a finding that the mutation entry in the name of the petitioner only on the basis of the application filed by him behind the back of the defendant instead of registered sale deed. It has also recorded a finding that the plaintiff has claimed that he become owner in possession of the suit property by way of adverse possession and he is in possession for more than 12 years and the mutation of the property in the revenue records, does not create an extinguished title nor has it a presumptive value on title.

Relying upon the decision of this Court in the case of K. Gopala Reddy (deceased) by L.Rs. Vs. Suryanarayana and Others, (2004) 1 KCCR 662 , the trial Court held that mere entries in the revenue records cannot be the basis to declare title of the person in immovable property, also considered the provisions of Article 65 of the Limitation Act, which prescribe that, for possession of the property in interest thereof based on title, limitation would be 12 years begins to run from the date of the defendant''s interest becomes adverse to the plaintiff Adverse possession means a hostile assertion, i.e., a possession which is expressly or impliedly in denial of title of the true owner. Under Article 65, burden is on the defendant to prove affirmatively. A person who bases his title on adverse possession must show by clear and unequivocal evidence, i.e., possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts, alleged must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of each case.

Ultimately the trial Court has held that the plaintiff has failed to prove prima facie case and balance of convenience in his favour as on the date of the suit. Accordingly, the application was rejected. The said order was affirmed by the lower appellate Court and recorded a finding that the material to note that even according to the own case of the plaintiff the suit schedule property was jointly purchased by his father as well as the father of the defendant at an undisputed point of time, which clearly indicates that both have become joint owners of the suit property. When once it is admitted that the suit property has been jointly owned by both, then, it is not open to the plaintiff to assert his exclusive right, much less has right by way of adverse possession. Merely because the defendant has been residing away from the suit property, that itself will not extinguish her right over the schedule property.

Admittedly father of the defendant was also joint owner of the suit property. However, it is alleged that the plaintiff in collusion with the revenue authorities tried to get mutated his name alone in the revenue records of the suit property by suppressing the fact that the defendant is also the co-owner of the schedule property which is also observed by the trial Court. Accordingly, the appellate Court held that when once the defendant admits the co-ownership of the father of the defendant, unless and until it is proved that the right, title or interest of the defendant is extinguished under any registered deed, the plaintiff cannot assert his exclusive right over the suit property. Therefore, the trial Court rightly declined to grant equitable order of temporary injunction to the plaintiff. Therefore, dismissed the appeal.

Both the Courts based on the material on record concurrently held that plaintiff has failed to prove possession and also held that father of both the parties were joint owners in pursuance of the registered sale deed dated 13.06.1936. So far as the exclusive possession by the plaintiff for more than 12 years against the adverse interest of the defendant, is to be decided only after the trial. Therefore, the orders of both the Courts below are perfectly justified. Petitioner has not made out any ground to interfere with the said orders. Accordingly, the petition is dismissed.