Kushalappa Gowda and Others vs Babu Gowda

Ravi V. Malimath, J.—The case of the plaintiff is that his father Shivanna Gowda was a tenant under Srihari Kachinthaya in respect of Survey No. 56/2, measuring 0.65 cents and Survey No. 56/1 measuring 1 acre, 10 guntas of Noojibalthila Village. He had applied for grant of occupancy rights, which was granted by an order dated 17.07.1979. Form No. 10 was issued on 08.04.1980. After the grant of occupancy rights, Shivanna Gowda had taken another property which was jointly cultivated by his sons Babu Gowda and other children. Thereafter, Shivanna Gowda and his four sons entered into a registered partition dated 04.12.1981 and divided the leasehold lands. The ''A'' schedule property fell to the share of the plaintiff and his children jointly. The ''B'' schedule property was jointly allotted to the share of Honnappa Gowda and his sons. The ''C'' schedule property was allotted to another son Chennappa Gowda and his only son.

The father of the plaintiff did not take any share in the properties under the partition deed. However, ''A'' schedule property was kept for himself and he had filed a separate declaration and occupancy rights. Both the defendants tried to knock off the plaint ''A'' schedule property. They concocted a Will said to be executed by Shivanna Gowda. The first defendant also got up a demand promissory note alleged to be executed by Shivanna Gowda for a sum of Rs. 50,000/- on 06.01.1996. On coming to know about the alleged Will, Shivanna Gowda cancelled the same. Thereafter, Shivanna Gowda sold ''A'' schedule property in favour of the plaintiff for a sum of Rs. 1,00,000/- under a registered sale deed dated 04.03.1996. Hence, the plaintiff became the owner of ''A'' schedule property. Subsequently, the name of the plaintiff was changed in the relevant documents.

The first defendant filed a suit in O.S. No. 53/1996 against Shivanna Gowda on the concocted promissory note. The suit was dismissed on 21.01.1997. The appeal filed in R.A. No. 8/1997 was also dismissed.

After purchasing the ''A'' schedule property, the plaintiff demanded possession of the same from the defendants. They failed to handover the possession. A legal notice dated 19.02.2000 was issued. The defendants committed acts of damages to the suit schedule property. They destroyed the paddy crops and the areca plants. In the year 2004, damages were to an extent of Rs. 6,000/- to the areca plants and Rs. 2,000/- to the paddy crops. Since the defendants failed to handover W schedule property, the instant suit was filed seeking for a decree of possession, damages caused to the areca and paddy crop and future mesne profits from the date of the suit till delivery of possession of the suit schedule property.

On service of summons, the defendants entered appearance. They admitted the occupancy rights granted to Shivanna Gowda in respect of lands in Survey Nos. 56/2 and 56/1. The joint living and cultivation of the plaintiff with their father was denied. According to them, he was not residing with his father. After the grant of occupancy rights in favour of the plaintiff also he never lived with the father. However, the relationship was admitted. That the plaintiff intentionally did not state the names of the other children of Shivanna Gowda born through his two wives. That in order to deny the share of the second defendant, the partition deed has been created in favour of the father of the plaintiff expressing his desire not to take any share in the properties. That Shivanna Gowda never put his LTM to the documents without disclosing the contents of it. The defendants never intended to knock off ''A'' schedule property. Further, the property sold in favour of the plaintiff was denied. That since the second defendant was looking after the entire family, the Will was executed in favour of the second defendant. Hence, it was pleaded that the suit be dismissed.

Based on the pleadings, the Trial Court framed the following issues for consideration:

"i. Whether the plaintiff proves that he is the absolute owner of VT schedule property and that he is entitled for the vacant possession of the same from the defendants along with the kumki land?

ii. Does he further proves that after issuing Lawyer''s notice defendants have caused damage to areca plants to the tune of Rs. 6000/- to the paddy field at Rs. 2000/- and he is entitled for compensation of the same from the defendants?

iii. Whether defendants prove that suit is barred by law of limitation?

iv. Whether plaintiff has properly valued suit and paid proper court fee on it?

v. To what relief parties are entitled?

vi. What order or decree?"

In support of the plaintiff''s case, three witnesses were examined and 9 documents were marked. Defendant No. 1 was examined as DW-1 and 4 documents were marked. The trial court held issue Nos. 1 and 4 in the affirmative and issue Nos. 2 and 3 in the negative. Accordingly, the suit was decreed. It was held that the plaintiff was entitled for delivery of possession of ''A'' schedule property from the defendants and future mesne profits at the rate of Rs. 5,000/- per month from the date of the suit till the delivery of possession of ''A'' schedule property by the defendants.

Aggrieved by the same, the defendants preferred an appeal. The first appellate court partly allowed the appeal. The judgment and decree with regard to the delivery of plaint ''A'' schedule property was confirmed. The judgment and decree with regard to the plaintiff''s entitlement of mesne profits was set-aside. Enquiry into the mesne profits was ordered. Hence, the present second appeal by the defendants.

The learned counsel for the appellants-defendants contend that the judgments of both the courts below with respect to the decree being granted is erroneous and liable to be set-aside. That the specific case of the defendants is one of adverse possession. Relying on the evidence of the plaintiff himself that the defendants have been in possession of the suit schedule property, he pleads that the issue of adverse possession should have been held in his favour. The trial court has failed to do so. Therefore, the judgment and decree of both the courts below are erroneous and liable to be set-aside. In support of his case he places reliance on the judgment of this court reported in G. Govindappa by his LRs. Vs. Tayamma by her LRs.,

Heard the learned counsel and examined the material on record.

The undisputed facts are that the suit schedule property was granted in favour of the plaintiff''s father on 17.07.1979. Thereafter, the father executed a sale deed in favour of his son namely, the plaintiff on 04.03.1996. The case of the plaintiff is that notwithstanding the sale deed being executed, since defendant No. 2 was in possession of the suit schedule property, the instant suit was filed seeking possession of the suit. The defendants raised a plea of adverse possession, that they were in possession of the suit schedule property ever since 12.05.1986 namely, the date of which defendant No. 1 married defendant No. 2. That the property was given to the second defendant by her father namely, the father of the plaintiff. However, both the courts below declined to accept the case of the defendants. Both the courts below were of the view that based on the sale deed, the plaintiff was entitled to claim possession of the suit schedule property. That the sale deed being executed in favour of the plaintiff in terms of Exhibit-P3, the plaintiff is entitled for possession of the same. That the defendants have no right, title or interest over the suit schedule property.

On considering the reasons assigned by both the courts below, I am of the considered view that there is no error committed by both the courts below in decreeing the suit. The case set-up by the defendants is one of adverse possession. It is pleaded that the defendants are in possession of the suit schedule property since 12.05.1986. The suit has been filed in the year 2004. The plaintiff being fully aware of the possession of the defendants having chosen not to do anything. The defendants are in possession of the suit schedule property adverse to the title and interest of the plaintiff.

However, what is of relevance herein is that the plea of adverse possession is being exercised not merely against the plaintiff but also against his vendor. I am of the considered view that such a contention cannot be accepted. The plaintiff became the owner in terms of the sale deed dated 04.03.1996. Infact it is a plea of the defendants themselves that until the date of sale deed, the plaintiff did not cultivate the land in question along with his father namely, the vendor of the property. Therefore, the plea of adverse possession necessarily would have to lie only against the owner of the said property. The owner of the suit schedule property was the plaintiff from 04.03.1996. Therefore, there cannot be any plea of adverse possession prior to that date against the plaintiff since prior to 1996, the plaintiff was not the owner of the suit schedule property. The owner of the suit schedule property not being the plaintiff, the plea of adverse possession therefore cannot lie against the plaintiff within a period of 12 years from 04.03.1996. The suit having been filed in the year 2004, namely within a period of 8 years, the contention of the defendants on the plea of adverse possession would not arise for consideration and it has to be negated. Under these circumstances, the reasons assigned by both the courts below are just and appropriate and does not call for interference.

Further more, no plea of adverse possession could be claimed against the plaintiff''s father namely the vendor, since he ceased to be the owner of the properties on execution of the sale deed on 04.03.1996.

Further the material on record would show the manner in which the defendants have conducted themselves. The second defendant is the daughter of the second wife of the plaintiff''s father. The first attempt made by the defendants over the suit schedule property is to set-up a Will. It was claimed by them that there is a Will in their favour. Immediately on coming to know of the plea set-up by the defendants, namely his own daughter and son-in-law, Shivanna Gowda got the said documents cancelled. The second attempt was to file a suit in O.S. No. 53/1996 by the defendants based on the promissory note. This too was an attempt to take away the property. The suit was dismissed on 21.01.1997. An appeal in R.A. No. 8/1997 filed by the first defendant was also dismissed. Therefore, this is the third plea being set-up based on the adverse possession. If the plea of the defendants on all three versions is to be accepted, it goes without saying that notwithstanding the contrary pleas that the defendants could take, there is no truth in any of the statement of the defendants. The first plea is set up based on a Will; the second plea is set-up on the basis of the promissory note; now in the instant suit, based on the adverse possession. The evidence recorded on the Will, as well as the promissory note so far as the contention in this suit is concerned, the plea set-up by adverse possession has been rightly negated by both the courts below. The evidence appreciated by both the courts below are just and proper and does not call for interference.

The learned counsel for the appellants, in support of his case places reliance on the judgment of this court reported in G. Govindappa by his LRs. Vs. Tayamma by her LRs., , with regard to paragraph Nos. 12 and 3, wherein it was held that, when the plaintiff fails to prove the theory of permissive possession, as a legal corollary and consequence, the plea of adverse possession automatically should be upheld. There is no dispute with regard to principle enunciated, but the question is against whom the adverse possession is sought to be established. In the instant case, the adverse possession is claimed against the plaintiff. The plaintiff became the owner of the suit schedule property on 04.03.1996. In fact, it is the case of the defendants themselves that prior to 04.03.1996 the plaintiff was not in joint cultivation or in possession of the suit schedule property along with his father. Therefore, the said judgment would not come to the aid of the appellant.

The case of the plaintiff being based on Exhibit-P3, the sale deed, necessarily the plaintiff would be entitled to all such property as are mentioned in Exhibit-P3. It is presently contended that the suit schedule properties far exceed than what is contended in Exhibit-P3. It is needless to state that so far as delivery possession of ''A'' schedule property is concerned, the suit will be decreed in terms of all properties as mentioned in Exhibit-P3 along with the direction on mesne profits.

However, there is a feeble attempt made to show that no issue with regard to adverse possession has not been framed by the trial court and therefore the matter has to be remanded for framing of issue with regard to adverse possession.

I have heard the learned counsel at length. In view of the defense set-up and in view of the background of the case and in view of the reference to the material on record, with regard to the plea of adverse possession, it would be wholly unnecessary to remand the matter. Moreover, the learned counsel has been heard at length on his plea on adverse possession.

Under these circumstances, I do not find any error committed by both the courts below that calls for interference. The entire case revolves only around facts and no substantial question of law arises for consideration. Consequently, the appeal being devoid of merit is dismissed.