Manjamma vs Suvarna S. Rao

A.S. Bopanna, J.—The appellant is before this Court assailing the concurrent judgments rendered by the Courts below.

The respondent herein instituted the suit in O.S. No. 177/2001 seeking declaration that the plaintiff is the owner of the suit schedule property and also for possession of the same from the defendant and consequently for injunction. The trial Court by its judgment dated 30.09.2006 has decreed the suit. The appellant herein i.e., the defendant to the suit, claiming to be aggrieved by the said judgment was before the Lower Appellate Court in R.A. No. 139/2006. The Lower Appellate Court by its judgment dated 20.10.2010 has concurred with the findings rendered by the trial Court and has dismissed the appeal. It is in that circumstance, the defendant claiming to be aggrieved by such concurrent judgments of the Courts below is before this Court in this appeal.

Heard the learned counsel for the parties and perused the appeal papers.

The plaintiff claims to be the owner of the suit schedule property. The manner in which she had become the owner of the property had been referred to by indicating Assessment No. 1377 initially measured 105 feet X 105 feet. The plaintiff had thereafter sold an extent of 65 feet x 105 feet to the defendant In the said process, she had retained the remaining extent. The extent measuring 32 feet 6 inch x 105 feet is the subject matter of the suit. The claim of the plaintiff is that the defendant had encroached the said portion of the property and in that circumstance had claimed right in respect of the property.

The defendant had disputed the claim as put forth by the plaintiff. Insofar as the manner in which the plaintiff had become the owner of the property and a portion being sold to the plaintiff, there is no dispute between the parties. However, the defendant contends that in respect of the suit schedule property also, the defendant had a right inasmuch as she was a tenant in respect of the said property which originally belonged to one Sri Narasimha Acharya who is the Vendor of the plaintiff and thereafter had continued to remain in possession. The defendant had further contended that in that circumstance, the defendant being in possession of the said property, such possession was adverse to the interest of the plaintiff and therefore she had perfected her title by way of adverse possession.

The trial Court framed as many as seven issues for its consideration. A perusal of the papers would indicate that by Issue No. 1, the plaintiff was required to prove that she was the owner in respect of the suit schedule property while by Issue No. 2, the defendant was required to prove that she had perfected her title in respect of the suit schedule property. The plaintiff had examined herself as P.W. 2 and a witness was examined as P.W. 1 while the documents at Exhs. P1 to P13 were relied upon. The defendant examined her Power of Attorney Holder as D.W. 1 and the witnesses as D.W. 2, D.W. 3 and the documents at Exhs. D1 and D2 were relied upon.

Though several contentions have been urged, what is necessary to be noticed is that the very contention as put forth by the defendant having perfected her title over the suit schedule property by adverse possession would indicate that the plaintiff was the owner of the property. In that regard, to take note of the contention that had been put forth by the defendant, the trial Court has referred to the evidence that had been tendered through the witnesses. The evidence of P.W. 1 has been referred to in detail and in that regard, the evidence of P.W. 2 and the suggestions made by defendant to P.W. 2 with regard to the manner in which the defendant had put fence around the property that had been purchased by the defendant as well as the adjacent property which had been retained by the plaintiff, was taken note. In that light, when the Courts below had referred to the evidence that had been tendered before it and has arrived at the conclusion, the said finding as recorded would have to be considered as a finding of fact recorded by the Courts below based on the evidence available before it.

Learned counsel for the appellant would contend that the trial Court in fact had erred in coming to the conclusion that the evidence of D.W. 1 cannot be relied as he was the Power of Attorney Holder of the defendant. Though that portion of the finding recorded by the trial Court is referred, a perusal of the same would indicate that the trial Court while taking note of the other evidence that is available on record and while analyzing the same has thought it fit not to rely on the evidence of D.W. 1 in the circumstance that it was not reliable and not rejecting only on the ground that he was a Power of Attorney Holder. Hence, at the outset, it is seen that both the Courts below have referred to the evidence available before it and the same has been analysed in accordance with law.

The appellant has filed an application in Misc. Cvl. No. 15560/2011 before this Court for production of additional documents. A perusal of the same would indicate that the receipts for having paid the taxes in respect of the property and also seeking change of revenue records in that regard are relied on as evidence by producing the same along with the application. Having perused the same and having taken note of the manner in which the evidence which was available on record has been analysed and more particularly, taking into consideration the fact that the defendant at the first instance had purchased one portion of the property from the plaintiff and the dispute relates to the remaining portion which had been retained by the plaintiff, the said document in my view would not be of assistance whatsoever. Accordingly, Misc. Cvl. No. 15560/2011 is rejected.

In the said light, having taken note that both the Courts below have referred to the evidence available on record and a finding of fact has been recorded, I see no substantial question of law for consideration in this appeal.

At this stage, learned counsel for the appellant submits that some time may be granted to vacate from the suit schedule property. Considering that the suit was filed in the year 2001 and presently execution petition is pending, taking into consideration all aspects of the matter, the appellant is granted three months time to vacate from the suit schedule property subject to the condition that the appellant shall file an undertaking in the execution proceedings on the next hearing date before the Executing Court indicating to vacate the property voluntarily within three months from that date. If such undertaking is filed, the Execution Court shall defer the issue of delivery warrant for a period of three months.

In terms of the above, the appeal stands disposed of.