Shantharama Shenoy vs Laxmikantha Samaga

Ravi V. Malimath, J.—Aggrieved by the concurrent findings recorded by both the Courts below, in decreeing the plaintiffs suit and directing the defendant to remove the compound wall at the cost of the defendant, the defendant has filed this second appeal.

The parties would be referred to as per their rank before the Trial Court.

The case of the plaintiff is that he is the absolute owner of the immovable property as described in ''A'' and ''B'' schedule properties and he is in lawful and actual possession of both items of the schedule properties. The said property has been acquired by the plaintiff by virtue of the registered sale deed dated 02.05.1981. That the defendant is the adjoining land holder in possession of the property in Sy. No. 86 measuring about of 0.08 acres and that he has put up a commercial building recently. That the Survey line is the boundary line of the plaintiffs and defendant''s property and boundaries of the ''A'' and ''B'' schedule properties, clearly shown in the registered sale deed. That the defendant has no manner of right, title or interest over the suit schedule property. That the total extent of Sy. No. 86/16A is 0.20 acres and the plaintiff has acquired 0.12 acres under the registered sale deed during the year 1981-82. That the defendant subsequently acquired the property more than 0.08 acres in Sy. No. 86/16A after 1981. That the defendant encroached 0.03V4 acres of land under Sy. No. 86/16A2 about 10 months ago before filing of the suit and put up a compound wall. The Town Municipality has also supported the defendant to encroach the said portion. That the defendant has forcibly grabbed the ''B'' schedule property, in the absence of the plaintiff. That the defendant has failed to declare that he has put up the compound wall, etc. Inspite of issuing a notice to surrender the possession of the ''B'' schedule property, the defendant did not do so. The defendant, being rich and powerful, the plaintiff filed the instant suit seeking for a decree of mandatory injunction to direct the defendant, his men and all persons claiming under him to remove the compound wall erected in the ''B'' schedule property and also to direct the defendant to surrender vacant possession of the same and further to restrain him from erecting or putting up any building, shed, etc., The defendant on entering appearance denied the suit averments and sought for dismissal of the suit.

On the basis of the pleadings, the Trial Court famed the following issues and an additional issue for its consideration:

i) Whether the plaintiff proves that he is absolute owner of the immovable properties described in the plaint ''A'' and ''B'' schedule property?

ii) Whether the plaintiff proves that the defendant has encroached the portion of property described in the plaint ''B'' schedule?

iii) Whether the defendant proves that suit of the plaintiff is barred by delay, latches, estoppel and acquiescence?

iv) Whether the defendant proves that the plaintiff has lost his right over the plaint ''B'' schedule property by way of adverse possession?

v) Whether the plaintiffs entitled for the relief of mandatory injunction and permanent injunction as sought in the suit?

vi) What order or decree?

Additional Issue: Whether the plaintiff proves that the defendant encroached and put up compound wall ten months prior to the suit?

In support of his case, the plaintiff examined himself as PW-1 and got marked 19 documents. The defendant examined himself as DW-1 and got examined another witness DW-2 and got marked 14 documents.

The Trial Court answered Issues No. 1, 2 and 5 in the ''affirmative'' and Issues No. 3, 4 and additional issue in the ''negative'' and decreed the suit by directing the defendant and his men to remove the compound wall, illegally erected in ''B'' schedule property and further directed to surrender the vacant possession of the ''B'' schedule property in favour of the plaintiff with costs. Aggrieved by the same, the defendant filed the first appeal before the Fast Track Court, Karkala, which was dismissed. Hence, the present second appeal.

The appeal was admitted by the order dated 15.06.2012 on the following substantial questions of law:

i) When the Trial Court framed additional Issue No. 1, and having answered this Issue in ''negative'' and the First Appellate Court having not given a contrary finding on this Issue framed by the Trial Court, whether the Courts below were justified in granting a decree in favour of the plaintiff for mandatory injunction to demolish the construction on the alleged encroached portion?

ii) When both the Courts below have arrived at the conclusion that the alleged encroachment and construction of compound wall was 10 years prior to institution of the suit, committed an error in granting decree in favour of the plaintiff contrary to the established principle of acquiescence as held by the Apex Court in Krothapalli Satyanarayana Vs. Koganti Ramaiah and Others, ?

Learned counsel for the appellant contends that both the Courts below have committed an error in decreeing the suit of the plaintiff. That when the additional issue was held in the ''negative'' and when the First Appellate Court has not given contrary finding on the issue, the Courts were not justified in granting the decree in favour of the plaintiff. That the Courts below have arrived at a conclusion that the plaintiff has failed to prove the encroachment ten months prior to the institution of the suit. The Courts below have committed an error in accepting the plea of the plaintiff that the compound wall is put up three years prior to filing of the suit. Hence, he contends that the Courts below committed an error in decreeing the suit.

Heard the learned counsel for the appellant. The respondent counsel is absent.

The plea of the defendant is one of adverse possession. It is his case that his Predecessors have been in possession of the land. Therefore, since he is holding the property adverse to the interest of the plaintiff, he is entitled for protection under the Principles of Adverse Possession and therefore, his title requires to be confirmed. That he having set up a plea of adverse possession, the same requires to be held in his favour. The plea putforth by the plaintiff runs contrary to the fact situation. Hence, he pleads that both the Courts have committed an error in decreeing the suit.

On hearing the learned counsel, I''am of the considered view that there is no merit in this appeal.

While considering the plea put forth by the defendant, the Trial Court was of the view that none of the ingredients exist to prove adverse possession by the defendant, viz., that the defendant has enjoyed the ''B'' schedule property with the hostile knowledge of the plaintiff continuously without any interruption for a period of twelve years, etc. Infact, the defendant has denied title of the plaintiff in the ''B'' schedule property. Therefore, it cannot be said that the ''B schedule property is being enjoyed by the defendant with the hostile knowledge of the plaintiff. When the title of the plaintiff to the property is denied by the defendant, the ingredient of adverse possession falls to the ground. The defendant has apparently failed to establish that he is in adverse possession of the ''B'' schedule property. It is however contended that the compound wall in question is put up more than 10 years ago whereas it is pleaded that it has been put up by the plaintiff, ten months prior to the institution of the suit.

On these averments, the Trial Court framed an additional issue as to whether the plaintiff proves that the compound wall has been put up ten months prior to the institution of the suit. The issue was answered in the negative. Therefore, the first substantial question of law was framed. The relevancy of putting up the compound wall ten months prior to the suit or a later period becomes inconsequential in the light of the defence put up by the defendant based on the adverse possession. When the defendant pleads possession, he admits to having put up the compound wall by encroaching upon the property of the plaintiff. Therefore, such an issue need not have been framed nor be proved by the plaintiff. When the defendant himself admits to having encroached the plaintiffs property and also admits having put up the compound wall by setting up a plea of adverse possession, it is for him to establish adverse possession. In these circumstances, there is no burden on the plaintiff to show that the encroachment or construction has taken place within three months or for any other period of time, since it is admitted by the defendant. Therefore, even though the finding recorded by the Trial Court is in ''negative'', is with regard to the encroachment or construction of the compound wall it is inconsequential, especially in view of the defence set up by the defendant on adverse possession. Therefore, the substantial question of law is answered by holding that the Trial Court was justified in decreeing the suit of the plaintiff, notwithstanding its negation of additional issue.

The second substantial question of law which has been framed is that, when both the Courts below have arrived at a conclusion that the alleged encroachment and construction of the compound was 10 years prior to institution of the suit, whether a decree could be granted in favour of the plaintiff contrary to the established principle of acquiescence as held by the Apex Court in the case of Krothapalli Satyanarayana Vs. Koganti Ramaiah and Others, .

Having considered the judgment of the Apex Court, I''am of the considered view that it would not come to the aid of this appeal. The facts therein are that the defendant had constructed the wall in the passage used as lane for passing and repassing by the plaintiff and also by dumping some earth in the passage obstructed the plaintiff from passing and repassing with cattle and carts from the lane, and the plaintiff approached the Court after 09 years, thereafter, the instant suit was filed and even otherwise, there is no prayer for removal of the wall, which prayer was made for the first time four years thereafter. Therefore, the Court declined to direct the defendant to remove the wall and clear the passage as the plaintiff guilty of acquiescence. In the instant case, the principles of acquiescence would have no role to play. It is not a case that the plaintiff was aware of the construction being put up and was a silent spectator to the same. Infact his pleadings are to the contrary. He was not aware of the construction being put up nor did he acquiesce with the same. In the Judgment relied upon, his passage was the only access, the plaintiff had from his house to the road. The wall was constructed 27 years ago and the conduct of the plaintiff would disentitle him to any relief because he was guilty of acquiescence. Therefore, the established principles of acquiescence as held by the Apex Court in the aforesaid Judgment would not be applicable to the facts and circumstances of the case.

However, in the instant case, the facts are different. The case made out by the plaintiff is that the construction has been put up by the defendant. The plea of the defendant being one of adverse possession. I''am of the considered view that the judgment would not come to the aid of the defendant. Hence, the second substantial question of law is answered by holding that the Courts below were justified in directing the defendant to remove the compound wall and the principles of acquiescence cannot be held against the plaintiff.

In view of the facts and circumstances of the case and the specific plea with regard to adverse possession having not been established, which thereby would intend that the encroachment as well as the construction being admitted by the defendant, necessarily, the suit of the plaintiff requires to be decreed as exactly done by the Trial Court and the First Appellate Court while answering the issues. Hence, on answering the substantial question of law, the appeal is dismissed.