S. Ramaswamy and Others vs B.T. Govindashetty and Others

Ravi V. Malimath, J.—The case of the plaintiff is that he was granted the suit schedule property namely, site bearing Kaneshmari No. 76, measuring East-West 45, and North-South 39 feet, situated at Ghataparthy Village, Thalak Hobli, Challakere Taluk, which is morefully described in the schedule to the plaint, by virtue of Exhibit-P1, which is a grant certificate dated 11.08.1972.

That the plaintiff is in possession and enjoyment of the aforesaid land ever since the grant and he has been paying taxes of the site and the katha also stands in his favour. Since he did not have any resource to construct the house, he obtained the licence in the year 1991 to put up the construction vide Exhibit-P2.

When he commenced the construction of the same, the defendants interfered. They stated that the plaintiff did not have any right, title or interest in the suit schedule property. That it is they, who are the owners of the same. Hence, the plaintiff filed the instant suit for a declaration that he is the owner in possession of the suit site and for a permanent injunction to restrain the defendants from interfering in the peaceful possession and enjoyment of suit schedule property.

On service of suit summons, the defendants entered appearance and filed their written statement. They denied the plaint averments. They contended that the suit schedule property is part and parcel of the ancestral property. That they are in continuous and uninterrupted possession of the suit schedule property for more than 30 years. That in terms of the partition effected in the year 1980, the suit schedule property fell to the share of defendant No. 1.

The defendants also pleaded adverse possession. They relied on certain tax paid receipts. They contended that the suit schedule property is to the west of the existing village that the plaint schedule property is towards the eastern side of the village. Therefore, the property is not properly identified. Hence, they sought for dismissal of the suit.

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

"i. Whether the plaintiff proves that he is the owner of the suit property?

ii. Whether the plaintiff proves that he was in lawful possession and enjoyment of the suit property as on the date of suit?

iii. Whether the plaintiff proves the alleged interference?

iv. Whether the defendants, proves that they have perfected their title to the suit property by adverse possession?

v. Whether the defendants prove that the suit of plaintiff is barred by time?

vi. Whether the plaintiff is entitle to decree?

vii. What order or decree?"

Issue Nos. 1, 2, 3 were held in the negative. Issue Nos. 4 and 5 were held in the affirmative. The plaintiff examined himself as PW-1 and two other witnesses, while 13 documents were marked. Defendant Nos. 1 and 2 were examined as DW-1 and DW-5, among other witnesses and in all produced 17 documents.

The trial court dismissed the suit of the plaintiff. Aggrieved by the same, he filed a first appeal. The first appellate court allowed the appeal and set-aside the judgment and decree of the trial court and decreed the suit of the plaintiff. It declared the plaintiff to be the owner in possession of the suit schedule property. The defendants were restrained from interfering in the peaceful possession and enjoyment of suit schedule property. Aggrieved by the same, the LRs of the first defendant and defendant Nos. 2, 3 and 4 have filed this appeal.

By the order dated 09.02.2012, the appeal was admitted to consider the following substantial question of law:

"Whether the judgment of the lower appellate Court is vitiated for non-consideration of the partition deed at Exhibit-D1"?

The learned counsel appearing for the parties, submit that the substantial question of law framed at the stage of admission of the appeal may not be appropriate and therefore they addressed arguments with regard to reframing of the substantial question of law.

Heard learned counsels on the same. The substantial question of law is reframed as follows:

"i. Whether the judgment and decree of the first appellate court is perverse in misreading and misapplying the evidence and material on record?

ii. Whether the judgment and decree of the first appellate court is perverse in reversing the finding of the trial court?"

Sri. Anirudh Anand, learned counsel for the appellants-defendants contends that the judgment and decree of the first appellate court is erroneous and liable to be set-aside. That the first appellate court failed to consider Exhibit-D1, the partition deed. That there is a dispute with regard to the identity of the property by the plaintiff as well as the defendants. That the first appellate court has misread the evidence, while wrongly decreeing the suit of the plaintiff. That even the issue of adverse possession has been wrongly considered by the first appellate court.

On the other hand, Sri. C. Shiva Kumar, learned counsel for the respondent-plaintiff defends the impugned order. He contends that there is no error that calls for any interference, much less, the plea the plaintiff which is based on Exhibit-P1, the grant certificate, which has been rightly considered by the first appellate court. So also both the courts below have considered Exhibit-D1, the partition deed relied upon by the defendants. That the substantial questions of law be answered in favour of the plaintiff by dismissing the present appeal.

Heard learned counsels and examined the records.

The plea of the plaintiff is based on Exhibit-P1, which is the grant certificate. The first appellate court has considered the said exhibit in detail. The same would indicate that the site bearing Kanishmari No. 76, in the schedule as mentioned therein, measuring East-West 45 feet; North-South 39 feet, was granted to the plaintiff. The same is clear and cogent in terms of Exhibit-P1, the grant certificate, which does not call for interference. This document is the proof of occupation and possession so far as the plaintiff is concerned. The schedule as mentioned in Exhibit-P1 is the very schedule to the suit.

On the other hand, the contention of the defendants is that they are the owners in possession of the suit schedule property in terms of Exhibit-D1. Exhibit-D1 is the partition deed dated 05.09.1980. The same contains the division of properties between two brothers therein and the extent of share of each one of them got, with reference to the plaint schedule property and the share that has been allotted to the first defendant can be found therein. It is therefore pleaded that the plaint schedule property being part of the Exhibit-D1, the partition deed, the plaintiff cannot be granted the said property. That it is the defendants who have received the property by virtue of the partition. They also relied on various other documents, in support of their case.

The trial court on considering the contentions, was of the view that the plaintiff should have examined the competent witness to prove that Exhibit-P1 and to show where exactly site No. 76 is situated, since the plaintiff contended that the suit schedule property is towards the eastern side of the defendants'' property and the defendants disputed the same. That the plaintiff has not discharged the burden of proving the existence or otherwise of the suit schedule property. On this ground the suit was dismissed.

The appellate court considered the evidence as well as the material on record, was of the view that the plea of adverse possession was not sustainable. That there is no material to show that the defendants were in possession of the suit schedule property, adverse and hostile to the interest of the plaintiff. Nothing further requires to be gone into so far as the issue of adverse possession is concerned, since the appellate court has rightly considered the same. The defendants have failed to prove that any of them were in possession of the suit schedule property adverse and hostile to the interest of the plaintiff.

Further more, the appellate court considered the evidence of defendant No. 1. It held that the defendant No. 1 has admitted in his evidence that site No. 76 has been granted to the plaintiff. That the Tahsildar has issued the grant certificate in favour of the plaintiff. That the case of the defendants is that the suit schedule property extends upto Honnur Road. That the plaint schedule property is to the west of Honnur Road and the properties of the defendants is to the east of the Honnur Road. Therefore, while placing reliance on this evidence, the trial court negated the plea of the defendants. It held that based on Exhibit-P1, the plaintiff is able to establish that in terms of the grant certificate he has been in possession of the suit schedule property ever since the date of grant, namely, from 11.08.1972.

The further contention of the defendants is that even assuming that the site has been granted in favour of the plaintiff, the State must follow the procedure as contemplated under Section-62 of the Panchayat Raj Act. Section-62 of the Panchayat Raj Act refers to the powers and duties of Adhyaksha and Upadhyaksha. Therefore, the plea is misconceived.

The learned counsel for the appellants/defendants further contends that if land has been granted by the State and no house is put-up on the same, the same shall stand resumed by the authorities. I''am unable to accept such a contention. The question of resumption by the State is an alien consideration in the present suit. Whether the plaintiff has complied with the condition of the grant or otherwise cannot be a subject matter in a suit for declaration. The remedy of the defendants therefore lies elsewhere. The said contention was rightly rejected by the courts below.

The further contention of the appellants/defendants is that there was a dispute with regard to the identity of the property. That the suit schedule property falls to the west of the Honnur Road. That the defendants'' property falls to the eastern side of the Honnur Road. Therefore, such a dispute would have to be established by the plaintiff in order to show where exactly the property is situated. Further as held herein above, the dispute is purely with regard to the schedule in terms of the Exhibit-P1, the grant certificate. The grant certificate contains the schedule to the site in question. It is that schedule alone which was granted in favour of the plaintiff. In fact, the suit schedule is identical to Exhibit-P1. Therefore, the contention of the defendants that there is a difference cannot be accepted. What has been included in Exhibit-D1 is a property that belongs to the State. A site that has been granted in favour of the plaintiff is a land that belonged to the Government. Just because the same has been included in a partition deed does not lead to the conclusion, that it is the property that belongs to the persons who seek partition. Otherwise they had to set-up a separate title or establish a separate title in order to show that they have inherited the property from their ancestors. There is no finding to the said effect. Nor is it the scope of this suit to go into the validity of Exhibit-D1, the partition deed. Merely because Exhibit-D1, the partition deed includes the suit schedule property, does not mean that the property is to be considered as a self-acquired property. The inclusion of the suit schedule property in Exhibit-D1 runs contrary to the governmental records, in terms of Exhibit-P1 which is a grant certificate.

It is under these circumstances that the appellate court interfered with the finding recorded by the trial court. That when the evidence of DW-1 would narrate with regard to the grant of site in favour of the plaintiff, the same was totally misread by the trial court. Even so far as the alternate plea of the adverse possession is concerned, the same was considered in depth by the first appellate court, which came to the conclusion that the defendants have failed to prove that they have been in continuous possession of the suit schedule property for more than 12 years and that they are in such a possession which is hostile to the interest and title of the plaintiff. Therefore, the alternate plea of adverse possession, set-up by them having not been proved, such a ground was rightly not considered by the first appellate court.

Consequently, the first substantial question of law is answered by holding that there is no perversity committed by the trial court in misreading and misapplying the evidence and material on record, by rightly considering the material and evidence on record. The trial court has passed a well-reasoned order which cannot be interfered with. The second substantial question of law is answered by holding that the judgment and decree of the first appellate court is just and appropriate and it has rightly reversed the findings recorded by the trial court.

Consequently, upon answering the substantial questions of law the appeal is dismissed. The judgment and decree dated 3.12.2007, passed by the Civil Judge (Sr.Dn.), Challakere, in R.A. No. 76/2003 is affirmed.

No Costs.