Perimuniyamma and Others vs Lakshmamma and Others

Ravi V. Malimath, J—Aggrieved by the judgment and decree passed by the XV Additional City Civil Judge, Bengaluru in O.S. No. 1049/1986, dated 23.09.2003, in partly decreeing the suit as against defendant Nos. 1, 2, 10 and 11 and directing them to handover the possession of the suit schedule property to the plaintiffs, while dismissing the suit against defendant Nos. 3 to 9 and 12, defendant Nos. 1 and 11 have filed this appeal.

The parties will be referred to as per their rank in the trial court.

The case of the plaintiff is that the suit schedule property consists of a portion of premises at Tippasandra Village, Motappana Palya Hobli, Bengaluru South Taluk, consisting of six mangaluru tiled houses, measuring east to west 20 feet and north to south 89 feet and bounded as per schedule.

The property originally belonged to one Nallappa, the grand father of the plaintiff. He executed a sale deed in favour of Smt. Katamma, the mother of the plaintiff on 04.02.1946, which included the suit schedule property. The second defendant is the step-brother of the plaintiff. The father of the plaintiff Gujjappa married Narayanamma, after the demise of Katamma. The second defendant is the son of Gujjappa and Narayanamma and after their demise, there was a partition between the plaintiff and the second defendant, which was reduced into writing on 08.04.1974.

The suit property fell to the share of the 10th defendant. Even after the partition, the plaintiff was paying the taxes. The taxes were being received in the name of Nallappa. It came to the notice of the plaintiff that the first defendant had obtained change of katha of the property which belonged to the plaintiff namely, the suit schedule property. The acts of the defendant therefore amounts to denial of the title of the plaintiffs. The defendant Nos. 3 to 9 are tenants of the suit schedule property under the plaintiff. Hence, the plaintiff filed the instant suit for declaration, recovery of possession, etc.

The first defendant entered appearance and denied the plaint averments. It was contended that there is no cause of action and the court fee paid is inappropriate and hence the suit requires to be dismissed. Even though the sale deed was executed on 04.02.1946, however, the possession was not delivered. Though the sale deed was executed, Nallappa continued to pay the municipal taxes. Nallappa out of love and affection has executed a gift deed dated 14.03.1958. Therefore, the defendant became the owner of the terms of the said gift deed. Nallappa never accepted the ownership of the property inspite of the sale deed dated 04.02.1946 in favour of Katamma. Therefore, notwithstanding the sale deed executed, the gift deed renders the title of the defendant as valid. Hence, it was pleaded that the suit be dismissed.

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

i. Whether the plaintiff proves her title to the suit schedule properties?

ii. Whether the plaintiff proves her lawful possession of the suit properties?

iii. Whether the plaintiff proves that the defendant Nos. 1 and 2 interfered with her possession of the suit properties?

iv. Whether the plaintiff proves that the 10th defendant has unlawfully entered the name of Dodda Muniyamma in the Katha register in respect of suit properties?

v. Whether the first defendant proves that this suit is not properly valued?

vi. Whether the first defendant proves that the sale deed dated 04.02.1946 was nominal?

vii. Whether the 1st defendant proves that Nallappa had perfected his title to the suit property by adverse possession? And gifted as stated in para-11(c) of his statement?

viii. Whether the 1st defendant proves that this suit is barred by limitation?

ix. Whether the first defendant proves that she has perfected her title to the suit property by adverse possession?

x. What relief or order?"

The plaintiff was examined as PW-1 and got marked 8 documents. Defendant No. 11 was examined as DW-11 and two other witnesses were examined and got marked 29 documents.

Issue Nos. 1 to 4 were held in the affirmative. Issue Nos. 5 to 9 were held in the negative. Consequently, the suit of the plaintiff was decreed as against defendant Nos. 1, 2, 10 and 11 and the suit against defendant Nos. 3 to 9 and 12 was dismissed. The defendants were directed to restore possession of the suit schedule property within 30 days from the date of the order. Aggrieved by the same, defendant Nos. 1 and 11 have filed this appeal.

The learned counsel for the appellant submits that the impugned order is bad in law and liable to be set-aside. That the trial court failed to consider the material on record and that the trial court''s finding that the plea of the defendant is based wholly on the gift deed is erroneous. Hence, he pleads that the appeal be allowed.

On the other hand, the learned counsel for the respondents supports the impugned judgment of the trial court and contends that there is no error committed in the judgment and decree and that the order of the trial court is based on the evidence led-in by the parties and hence no interference is called for.

On hearing learned counsels, the point that arises for consideration is as to whether the judgment and decree of the trial court is perverse and interference is called for?

On considering the material and evidence on record, the trial court was of the view that there is substantial material to establish that the plaintiff is the owner in possession of the suit schedule property, by virtue of the sale deed dated 04.02.1946. It is on the basis of this sale deed that the plaintiff was able to prove title and possession. Therefore, the issues were held in favour of the plaintiff. There was no acceptable evidence led-in by the defendants to disbelieve the case of the plaintiff. Evidence of only defendant No. 11 was led-in. The evidence was not sufficient to dislodge the case of the plaintiffs. Therefore, it cannot be said that the findings of the trial court is perverse or liable for interference. The contention of the defendants with regard to the market value and the court fee were also negated by the trial court. There is no worth while contest with regard to the same nor is there any ground to interfere with the finding of the trial court.

So far as the question of the gift deed is concerned, the same was executed in the year 1958. The gift deed would narrate that the property is under the ownership of Nallappa. Therefore, it is pleaded that the property belongs to Nallappa. I am of the considered view that such a contention cannot be accepted. Only because it is narrated in the gift deed that the property is in the ownership of Nallappa, that does not render any true title to Nallappa. Admittedly, Nallappa had sold the property in the year 1946 and he has lost his right, title and interest over the same. Twelve years later, the gift deed has been executed in the year 1958. Only because he narrates that he has title, it does not mean he has title or possession over the same. He has lost it when he executed the sale deed. Therefore, the trial court has rightly held that the gift deed was not proved. I find no good ground to interfere with the same.

The trial court was of the view that there is substantial material to establish that the plaintiff is the owner of the possession of the suit schedule property by virtue of the sale deed dated 04.02.1946. It is on the basis of the sale deed that the trial court was of the view that the plaintiff has title over the said property. Therefore, the issues were held in favour of the plaintiff. There was no evidence led-in by the defendant to disbelieve the case of the plaintiff. On considering the reasons assigned by the trial court, I am of the considered view that no interference is called for. Hence the finding of the trial court on these issues are appropriate.

It was contended that the market value and the court fee paid is improper. The said issue was considered by the trial court. It was of the view that DW-1 in the entire course of his examination has not stated anything about the value of the suit property being Rs. 2,00,000/-. Therefore, the said contention could not have been accepted. The plea of the plaintiff with regard to the market value and court fee was accepted in the absence of any contrary evidence led in by the defendant.

The trial court negated the issue that Nallappa had perfected the title of the property by adverse possession on the gift deed as stated in para-11(c) of the written statement. The trial court was of the view that the question of adverse possession would not arise for consideration as Nallappa having executed the sale deed in the year 1946, could not claim to be in possession of the property on the basis of adverse possession. Therefore, the plea of adverse possession was negated. There is not ground to interfere with the same.

So far as the question of the gift deed is concerned, the same was executed in the year 1958. Only because it is narrated in the gift deed that the property is under the ownership of Nallappa, that itself would not give any valid title to him. He would have to prove by material and evidence that the date on which the property was gifted, he was the owner in possession of the same. He has failed to do so. Even otherwise, the sale deed executed by him in the year 1946, having been established, he could not have executed the gift deed 12 years later in the year 1958. Consequently, the plea of the defendants that they are the owners in possession of the suit schedule property in terms of the gift deed executed in the year 1958 has not been proved by them. The trial court has rightly recorded the findings in this regard.

Issue No. 9 was as to whether the first defendant proves that she has perfected her title by adverse possession. The plea that the first defendant had perfected her title and interest of the suit property was negated by the trial court. The plea could not be accepted since in one breath she claims she is the donee who received the property as given by Nallappa and on the other hand, she states that she has perfected the title by adverse possession. In order to claim possession by adverse possession, there should be presence of animus possidendi. If it is absent, the person will not get any right, title or interest in the property. Merely because she has been in continuous actual possession of the property does not mean that she has perfected the title by adverse possession. There is no material to establish the same. Hence, the plea of appellant''s possession was rightly negated by the trial court.

The limitation in filing the suit raised in issue No. 8, was answered to the effect that the suit is not barred by time and based on reasons given on issue No. 9. Issue No. 9 has already been discussed as herein above.

Hence, the point for consideration is answered by holding that the judgment and decree of the trial court is based on material and evidence on record and it cannot be said that it is perverse and hence no interference is called for.

There is no submission by the appellant''s counsel with regard to time required by them to vacate as ordered by the Trial court. Since there is no request, the appellants are directed to hand over the possession within 3 months from the date of receipt of a copy of this order.