Malatesh and Others vs Shivayogeppa and Others

B. Veerappa, J.—This is an unsuccessful plaintiffs'' regular second appeal against the judgment and decree dated 21.7.2014 made in R.A. No. 127/2010 on the file of the II Additional District Judge, Haveri, sitting at Ranebennur, confirming the judgment and decree dated 6.8.2010 made in O.S. No. 150/2004 on the file of the Principal Civil Judge (Sr.Dn.) and Itinerant Court, Hirekerur dismissing the suit for declaration of title on the basis of adverse possession and for permanent injunction of the suit schedule properties.

It is the case of the plaintiffs that originally the suit schedule property i.e., Sy. No. 48 measuring 3 acres 34 guntas was belonging to the 1st defendant and the 1st defendant had agreed to sell the said property for a sum of Rs. 23,994/- in favour of the plaintiffs in pursuance of the agreement dated 25.4.1985 and 1st defendant received an advance sum of Rs. 14,000/- and had agreed to execute the sale deed by the end of March, 1986 by receiving the balance sale consideration of Rs. 9,294/- but on the same day itself, the defendants had handed over the suit property to plaintiff No. 1 without receiving the balance sale consideration. The plaintiffs are in possession and enjoyment of the suit schedule property. After execution of the sale agreement, in spite of several request made, defendant No. 1 did not received the balance sale consideration from the plaintiffs. Since the date of sale agreement, the plaintiffs are in possession and enjoyment of the suit property as owners. The defendants having not complied with the sale agreement dated 25.4.1985, the agreement was thereby cancelled. Even thereafter, the 1st defendant did not obtain the possession of the suit schedule property from the plaintiffs and hence, the right of defendant No. 1 to claim possession of the suit property is barred by time. It was also contended that in the year 1986, the plaintiffs have denied the agreement orally by claiming that they are the absolute owners of the suit property. Hence, plaintiffs perfected their title over the suit property by adverse possession. It was contended that even now, the suit property is in possession of the plaintiffs. It is their further case that, out of the suit property measuring 2 acres 20 guntas of land, 1 acre 15 guntas of land was sold in favour of each of plaintiff Nos. 1 and 2 on 31.12.1993 under a registered sale deed, but the remaining 1 acre 4 guntas of land i.e., suit property is continued to be in possession of the plaintiffs since 1985. This being the fact, defendant No. 1 without obtaining possession of the suit property from the plaintiffs and with an intention to cause loss to the plaintiffs has sold the suit property in favour of defendant No. 2 on 22.12.2003 which came to be known by the plaintiffs recently. Therefore, the plaintiffs filed a suit for the relief sought for.

The 1st defendant remained absent and hence, he was placed exparte. Defendant No. 2 filed written statement denying the plaint averments and specifically contended that the suit property i.e., 1 acre 4 guntas of land on Northern side of Sy. No. 48/1 totally measuring 3 acres 34 guntas was in possession of defendant No. 1 as the owner; that defendant No. 1 had sold the same in favour of defendant No. 2 on 22.12.2003 for a sum of Rs. 61,000/- under a registered sale deed and on the same day, defendant No. 1 had handed over the possession of the same to defendant No. 2 and hence, defendant No. 2 is in possession and enjoyment of the suit property since 22.12.2003 and the plaintiffs were never in possession of the same. It was further contended that towards North of the suit property, there is an ancestral property of defendant No. 2; that though the plaintiffs were in possession of the southern side of the suit property measuring 2 acres 30 guntas of land having been purchased from defendant No. 1 in the year 1993, they were never in possession of the northern side i.e., 1 acre 4 guntas i.e., the present suit property, at any point of time. It was also contended that defendant No. 2 is a bonafide purchaser of the suit property for a valuable consideration; that since the plaintiffs were aware of the sale deed having been executed in favour of the 2nd defendant had not challenged in the suit, the suit of the plaintiffs is not maintainable, etc., and hence, prayed for dismissal of the suit.

Based on the pleadings, the trial court framed the following issues:

(i) "Whether the plaintiffs prove that he was in possession and enjoyment of the suit property as on the date of the suit?

(ii) Whether the plaintiffs prove that he has become owner of the suit schedule property by adverse possession?

(iii) Whether the defendants prove that they are bona fide purchaser of the suit property for valuable consideration?

(iv) Whether the plaintiff is entitled for the relief claimed in the suit?

(v) What order or decree?"

In order to establish the plaintiffs'' case, P. Ws. 1 and 2 were examined and the documents were marked as Exs. P. 1 to 4. On behalf of the defendants, D.W.1 was examined and the documents Exs. D.1 and 2.

The trial Court on considering the entire material on record has recorded a finding that the plaintiffs have failed to prove that they were in possession and enjoyment of the suit property as on the date of the suit. Further it has also recorded that the plaintiffs have failed to prove that they had become the owner of the suit property by adverse possession and hence, they are not entitled for any relief as claimed in the suit. The trial court also recorded a finding that defendants are the bona fide purchasers of the suit property for a valuable consideration and accordingly, dismissed the suit.

Aggrieved by the said judgment and decree, the plaintiffs preferred an appeal in R.A. No. 127/2010 before the II Additional District Judge at Haveri (sitting at Ranebennur), who after hearing both the parties, by the impugned judgment and decree dismissed the appeal confirming the judgment and decree of the trial Court. Hence, the present appeal by the plaintiffs.

I have heard the learned Counsel for the appellants.

Sri Avinash Banakar, learned Counsel for the appellants contended that both the Courts below have concurrently erred in dismissing the suit of the plaintiffs ignoring the material evidence viz., Ex. P.1 -agreement dated 25.4.1985 and the provisions of Article 65 of the Limitation Act. It also contended that even though the plaintiffs have proved the adverse possession, the Courts below have not considered the same. Therefore, he sought for setting aside of the impugned judgment and decree of the Courts below.

I have given my anxious consideration to the arguments advanced by the learned Counsel for the appellants and perused the entire material on record.

On the basis of the alleged agreement dated 25.4.1985, the plaintiffs are claiming adverse possession, which is said to have been executed by defendant No. 1 in respect of 3 acres 34 guntas situated at Holabikonda village, Hirekerur Taluk and they claim that subsequently, the agreement was cancelled and they continued to be in possession of the same. It is also their case that defendant No. 1 subsequently alienated 1 acre 15 guntas each in favour of plaintiff Nos. 1 and 2 on 31.12.1993 and therefore, the plaintiffs are remaining in possession of 1 acre 4 guntas of land for more than 12 years which is adverse to the interest of defendant No. 1. The substance of the written statement of defendant No. 2 is that defendant No. 1 sold had sold the suit property i.e., 1 acre 4 guntas towards northern side of Sy. No. 48/1 to him (2nd defendant) and he was in his possession as owner on 22.12.2003 for a valuable consideration which the plaintiffs are aware and admittedly, the plaintiffs have not challenged the said sale deed till today.

Considering the entire material on record, the trial Court has recorded a finding that the suit is for declaration of title over the suit schedule property by adverse possession and that the plaintiffs have to prove the specific ingredients to show that the suit schedule property belongs to defendant Nos. 1 and 2 and from the date on which they have denied the title of the plaintiffs and that they were in possession of the suit property adversely to the interest of original owner of the suit property for a period of more than 12 years which fact is not proved by the plaintiffs. Further that the plaintiffs have contended that defendant No. 1 executed the agreement of sale as per Ex. P.1 in favour of plaintiff No. 1 on 25.4.1985 and that they have not executed the sale deed in favour of plaintiff No. 1 as agreed to by him within May, 1985 and the plaintiffs have cancelled the sale agreement in the month of July, 1986. Except the oral evidence, there is no evidence to challenge that the agreement as per Ex. D.1 was executed by the defendants in favour of the plaintiffs was cancelled as contended by them in the suit. Unless there is denial of title of the original owner by the person in possession of the suit property, there is no evidence as to when and how the plaintiffs have denied the title of the plaintiffs over the suit property. On one breath they claim that they are in possession of the agreement said to have been executed on 25.4.1985 and on another breath, they say that they have purchased 1 acre 15 guntas on 31.12.1993 i.e., totally measuring 2 acres 30 guntas and he still remains in possession of 1 acre 15 guntas adverse to the interest of defendant No. 1. The said fact is not proved by producing any material document before the Court. Admittedly, in the present case, the plaintiffs have not filed any suit for enforcement of the agreement dated 25.4.1985. Once they admit that the sale deed dated 31.12.1983 admitting the ownership of defendant No. 1 in respect of 2 acres 30 guntas, they cannot deny the possession or title over the suit property by defendant No. 1 by virtue of the agreement dated 25.4.1985 since they have not enforced the said agreement and the same is not a registered document, which cannot be considered and till today, it is not the case of the plaintiffs that they have enforced the said agreement.

Further the trial Court considering the entire material on record has come to the conclusion that the sale deed executed by the defendants was not produced in the suit and hence the plaintiffs have no right over the suit property to challenge the sale deed executed in favour of defendant No. 2 and there is no explanation as to why they have not challenged the boundary as mentioned in Ex. P.3 since 1993 till today. It has held that on the date on which Ex. P.1 itself was executed, defendant No. 1 had claimed that the northern portion of the suit survey number i.e., the present suit property was kept in his possession for his use. It has also held that there is no evidence to show that from the date of execution of sale deeds Exs. P.2 and 3, the plaintiffs were in possession of the suit property and subsequently, they have denied the title over the suit property by defendant No. 1 and hence, dismissed the suit.

On re-appreciation of the entire material on record, the Lower Appellate Court recorded a finding that it is admitted by the plaintiffs that they are in possession of the suit property for more than 12 years and that their sale deeds Exs. P.2 and 3 are silent about the possession of the remaining land measuring 1 acre 4 guntas which is the suit property in question. In view of the fact that the injunction can be granted in favour of the persons who are in lawful possession and enjoyment of the suit land, it has held that no document is produced to prove that they are in possession of the suit property even after the execution of the registered sale deeds Exs. P.2 and 3. On going through the evidence deposed by D.W.1, it has held that he was put in possession of the land in question after registering the sale deed Ex. D.1 on the basis of which, his name was entered in the record of rights. It has further held that admittedly the record of rights Ex. D.2 is not at all questioned, which clearly indicated that the suit schedule property is in possession of defendant No. 2 from 22.12.2003 and therefore, it has come to the conclusion that the trial Court after looking into the documentary and evidence on record was right in holding that the plaintiffs have failed to prove the title over the suit land by way of adverse possession and no notice was given to the 1st defendant in cancelling the sale agreement Exs. P.1 and as to claiming of the hostile title and possession over the suit land against defendant No. 1. Accordingly, dismissed the appeal.

The entire substance of the case of the plaintiffs is on the basis of the alleged agreement dated 25.4.1985. It is not in dispute that subsequently, the very plaintiffs have purchased the remaining portion of the land in Sy. No. 48/1 on 31.12.1993 i.e. 1 acre 15 guntas each, totally measuring 2 acres 30 guntas. The suit filed was only in respect of suit property on the basis of adverse possession pursuant to the agreement dated 25.4.1985 and admittedly, no document was produced by the plaintiffs before the Court to prove that the agreement was cancelled and in the absence of cancellation of the agreement, the plaintiffs cannot claim adverse possession in respect of the suit property. It is also an admitted fact that the 1st defendant alienated the suit property in favour of the 2nd defendant on 22.12.2003 and in pursuance of the same, revenue entries are also made in favour of defendant No. 2 as per Ex. P.2. It is also an admitted fact that the said sale deed or the revenue entries are not at all challenged by the plaintiffs, who claim to be in adverse possession till today. Therefore, the claim made by the plaintiffs is mis-conceived without any possession. Hence, both the Courts below have concurrently held that the plaintiffs have failed to prove their adverse possession as on the date of the suit and also that the 2nd defendant is a bonafide purchaser of the suit property, which is a finding of fact based on the oral and documentary evidence on record and the same is in accordance with law. The plaintiffs have not made out any ground calling for interference by this Court exercising the powers under the provisions of Section 100of the Code of Civil Procedure, 1908.

Consequently, no substantial question of law arises for consideration in the present appeal. Accordingly, Regular Second Appeal stands dismissed.