Gangadharappa vs J.M. Ramaiah and Others

Budihal R.B., J—This appeal is preferred by the appellant plaintiff No. 1 challenging the judgment and decrees passed by the courts below whereby the suit of the plaintiffs has been dismissed by both the Courts below.

Brief facts leading to the filing of the case before the trial Court are that the plaintiffs'' grand father Gangadharappa was the owner of the property bearing Sy. No. 39/1 of Mantapa village measuring 1 acre 9 guntas, described in the schedule to the plaint. Gangadharappa was having the only son by name Veeraswamappa @ Veeraswamy. The plaintiffs inherited the suit schedule property as they were the only legal heirs to their grandfather as well as their father after their demise. However, after the demise of Gangadharappa, till 1972, the name of Gangadharappa continued in the property extract. In the year 1972, the plaintiffs took steps to delete the name of their grand father and to enter their names in the suit schedule property. It is the further case of the plaintiffs that defendant Nos. 1 and 2 who have no any right, title or interest over the suit schedule property created the document stating that the father of the plaintiffs Veeraswamy sold 9 guntas of the suit ''B'' schedule property in favour of father of the 1st defendant under the registered sale deed in the year 1972 and thereafter, it is shown that father of the 1st defendant has also sold 9 guntas of property in favour of the 2nd defendant under the registered sale deed in the year 1996. It is the contention of the plaintiffs that they continued to be the owners in possession of the suit schedule property but in spite of that, the 2nd defendant on the strength of the registered sale deed started to cause obstruction to the their peaceful possession and enjoyment of the suit schedule property. During the pendency of the suit, the plaintiffs had also got amended the plaint. They also claimed that they were the owners of the suit ''B'' schedule property by way of adverse possession. Hence, they sought for decreeing the suit firstly for declaration that they are the owners of the suit ''A" schedule property measuring 1 acre 9 guntas and secondly, they have to be declared as owners by adverse possession to the extent of 9 guntas of suit ''B'' schedule property and also sought permanent injunction against defendants.

The 2nd defendant filed written statement denying the case of the plaintiffs. It is specifically pleaded by the 2nd defendant in the written statement that the father of the plaintiffs sold 9 guntas of the property i.e., suit ''B'' schedule property in favour of the father of the 1st defendant in the year 1972, who in turn, sold the property to the said extent in his favour in the year 1996. It is his contention that as per the registered sale deed, his name has been entered to 9 guntas of the property and he has been in actual possession and enjoyment of the suit ''B'' schedule property. It is also his contention in the written statement that originally, the property bearing Sy. No. 39/1 was measuring 1 acre 29 guntas. Out of which 20 guntas was sold by father of the plaintiffs in favour of Chikkaathayamma and Eramma. So the remaining property is only 1 acre 9 guntas. Out of which, 9 guntas was sold in favour of the father of the 1st defendant, who in turn sold the same in his favour. It is also his contention that when 20 guntas of land has been sold in favour of the other purchasers, without challenging the said transaction, the plaintiffs have challenged only the transaction of the year 1996 i.e., in between defendant Nos. 1 and 2. He has also mentioned in the written statement that even the sale deed of the year 1972 executed by the father of the plaintiffs in favour of the father of the 1st defendant is also not challenged in the suit. Hence, the suit itself is not maintainable. On this ground, the 2nd defendant has sought for dismissal of the suit.

After considering the pleadings of the parties, the trial Court framed the necessary issues in the matter and ultimately, dismissed the suit of the plaintiffs. The same was challenged by the plaintiffs before the First Appellate Court and the First Appellate Court also after re-appreciating the material on record, both oral and documentary, dismissed the appeal confirming the judgment and decree passed by the trial Court. Against the said judgment and decrees of the Courts below, the present appeal has been preferred by the appellant-plaintiff No. 1 on the grounds as mentioned in the appeal memorandum.

While admitting the appeal, this Court has framed the following substantial questions of law:

"a. Whether recitals in registered documents can be over looked and reliance could be placed either on an unregistered document registered thereof or on the basis of oral evidence to decree the suit?

b. Whether Trial Court and Appellate Court were correct in decreeing the suit though property number and boundaries described in the plaint schedule would not tally with the description found in the sale deeds dated 22.3.1972 and 14.08.1996?"

Heard the arguments of the learned counsel appearing for the appellant plaintiff No. 1 and also the arguments of the learned counsel appearing for respondent No. 2-defendant No. 2.

Learned counsel appearing for the appellant-plaintiff No. 1 during the course of the arguments submitted that the sale deed said to have been executed by the father of the 1st defendant in favour of the 2nd defendant is in respect of Sy. No. 46 and not Sy. No. 39/1 of Mantapa village. When the registered sale deed shows the number as Sy. No. 46 and not as Sy. No. 39/1, unless and until there is rectification deed, the claim of the 2nd defendant that he has purchased the property bearing Sy. No. 39/1 is not at all acceptable and it cannot be considered at all. It is also his further submission that in respect of the execution of the registered sale deeds of the year 1972 and 1996, the plaintiffs are continued into the actual possession and enjoyment of the suit schedule property and hence, the plaintiffs are entitled for injunctory reliefs. Firstly, the survey number is not tallying and secondly, the boundaries of the property, which is said to have been purchased by father of the 1st defendant, who in turn sold the same in favour of the 2nd defendant, are also not tallying each other. It is his submission that all these material aspects were not considered by the Courts below. The evidence led by the plaintiffs as well as the witnesses has been wrongly read by both the Courts below and wrongly dismissed the suit of the plaintiffs. In support to his contention, learned counsel appearing for the appellant has relied upon the following decisions:

"1. Sri Munireddy and Others Vs. State of Karnataka and Others, (2010) ILR (Kar) 1703 : (2010) 6 KarLJ 666 : (2010) 2 KCCR 1059

P. Chandrasekharan and Others Vs. S. Kanakarajan and Others, AIR 2007 SC 2306 : (2007) 104 CLT 585 : (2007) 6 JT 347 : (2007) 6 SCALE 342 : (2007) 5 SCC 669 : (2007) 5 SCR 967 : (2007) AIRSCW 4002 : (2007) 4 Supreme 174

State of Haryana Vs. Mukesh Kumar and Others, AIR 2012 SC 559 : (2012) 1 RCR(Civil) 17 : (2011) 11 SCALE 266 : (2011) 10 SCC 404 : (2011) 6 UJ 4099 : (2012) AIRSCW 276

Smt. Manjushri Raha and Others Vs. B.L. Gupta and Others, (1977) ACJ 134 : AIR 1977 SC 1158 : (1977) 2 SCC 174 : (1977) 2 SCR 944 : (1977) 9 UJ 212 "

Per contra, learned counsel for the respondent No. 2 defendant No. 2 during the course of the arguments submitted that though the survey number of the property in the sale deed of the year 1972 is mentioned as 46, but in reality, it is Sy. No. 39/1. This has been elicited with the help of pleadings and the evidence of the parties and hence as of now, there is no difficulty so far as the identification of the property is concerned. It is also his submission that when 9 guntas of the property has been sold in favour of the father of the 1st defendant in the year 1972, the plaintiffs after attaining the majority and within the period of three year ought to have challenged the said transaction which they have not done in this case. Therefore, without challenging the sale deed of the year 1972, the plaintiffs have no legal right to file the suit against the present defendants more particularly the 2nd defendant. It is also his submission that by amending the plaint, the plaintiffs made a claim of title over the property by way of adverse possession. When they are claiming adverse possession, necessarily they have to accept the owner ship of the defendants because adverse possession can be claimed only on the property of others and not ones own. In the cross examination of P.W.1, he has clearly admitted the boundaries of the suit schedule property and even the property sold under the registered sale deed of the year 1972. It is clearly identified with the help of his own pleadings in plaint Para Nos. 3 and 3(a). Hence, the learned counsel submitted that both the Courts below have taken into consideration all these aspects and recorded the concurrent findings and dismissed the suit of the plaintiffs. Therefore, so far as the factual aspect is concerned, when there is concurrent finding of the Courts below, the appellant cannot succeed in this appeal. Hence, he submitted to dismiss the appeal. In support of his contention, learned counsel for the respondent No. 2 has relied upon the following decisions:

"1. Sheodhyan Singh and Others Vs. Musammat Sanichara Kuer and Others, AIR 1963 SC 1879 : (1962) 2 SCR 753

Narasimha Shastry Vs. Mangesha Devaru, (1988) ILR (Kar) 554 "

I have perused the pleadings of the parties presented before the trial Court, judgment and decrees passed by both the Courts below, the grounds urged in the appeal memorandum and also the substantial questions of law framed by this Court referred above.

Looking to the materials on record and as it is submitted by the learned counsel for the appellant herein, the first contention is with regard to the identity of the survey number because, according to him, in the sale deed, the survey number is mentioned as ''46'' of Mantapa village and not ''39/1''. In this regard and as the learned counsel appearing for the respondent No. 2 draws the attention of this Court to the pleadings of the plaint at para No. 3 and 3(a), it is clear that the plaintiffs while getting the plaint amended at the time of claiming adverse possession have admitted the identity of the property that was sold in the year 1972 by their father to the father of the 1st defendant as per suit ''B'' schedule property. Therefore, in view of the such pleading presented by the parties themselves before the trial Court so also looking to the oral and documentary evidence produced before the Court regarding the identity of the property, it cannot be accepted that the survey number mentioned in the sale deed is Sy. No. 46 of Mantapa village and not Sy. No. 39/1. It is no doubt true that survey number is mentioned as 46 in stead of 39/1, but during the course of cross examination of P.W. 1, when it was asked as to whether his father was having property bearing No. 46, P.W. 1 has not at all answered specifically as ''no'', but shown his ignorance which is no denial at all. This itself shows that the plaintiffs have no knowledge about the properties of their father. Perusing the materials and looking to the boundaries of the property elicited during the course of trial before the trial Court, both the Courts below have held that the identity of the property clearly goes to show that it is Sy. No. 39/1 and through oversight or by mistake, the same is mentioned as Sy. No. 46 in the sale deed of the year 1972. Though in the amended plaint, it is admitted that the plaintiffs'' father sold 9 guntas of property in favour of the father of the 1st defendant in the year 1972, but even then the said sale deed has not been challenged in the suit. Therefore, respondent No. 2 and learned counsel for respondent No. 2 are right in their contention that without challenging the sale deed of the year 1972 under which respondent No. 2-defendant No. 2 gets title to the suit ''B'' schedule property, the suit in the present form is not maintainable.

Though, it is contended at the beginning that the plaintiffs are the owners of the property including the suit ''B'' schedule property to the extent of 9 guntas and claimed declaration of title contending that they continued into the possession of the said property, but subsequently, they got amended the plaint and made claim of adverse possession. This itself goes to show that by making such amendment, they have admitted the 2nd defendant as owner so also the ownership of father of the 1st defendant earlier. Even with regard to the pleading of adverse possession, the ingredients of law of adverse possession like when the plaintiffs came into possession, what was the starting point, whether it was a rightful entry or wrongful entry or as to animus of their possession, have not at all specifically pleaded in the amended plaint. In the absence of such pleadings, the Courts below are justified in rejecting the claim of the plaintiffs, even the owner ship of title or title on the basis of the adverse possession.

I have also perused the decisions relied upon by the learned counsel appearing for the appellant as well as the learned counsel appearing for the respondent No. 2. The facts and circumstances involved in the reported decisions are not exactly one and the same to the facts and circumstances involved in the case on hand. Therefore, those decisions will not come to the aid and assistance to the appellant plaintiff No. 1 in decreeing the suit as against the defendants. Perusing the judgment and decrees passed by the Courts below, all the aspects of the matter are taken into consideration and they have answered properly while dismissing the suit of the plaintiffs. There are concurrent findings of the Courts below. I do not find any illegality in the judgment and decrees passed by the Courts below so as to interfere with the same. There is no merit in the appeal. The appeal fails and it is accordingly stands dismissed.