Zaida vs Nissarhamed and Others

B. Veerappa, J—This is a plaintiffs second appeal against the judgment and decree dated 24.06.2014 made in R.A. No. 937/2009 on the file of the I Fast Track Court and District and Sessions Judge, Belgaum, allowing the appeal in-part and modifying the judgment and decree dated 17.08.2007 made in O.S. No. 482/2005 setting aside the ownership of plaintiff in respect of suit schedule property by way of adverse possession and granted injunction from dispossessing the plaintiff from the two rooms situated in the suit schedule property.

It is the case of the plaintiff that, the property bearing CTS No. 2688/1 situated at Kasaigalli Belgaum, belongs to plaintiffs mother-in-law. The defendants 1 and 2 and the plaintiffs husband are the full brothers. The husband of plaintiff died on 15.4.1991. The suit schedule property is ancestral property and the plaintiff and defendants'' families are staying in CTS No. 2688/1 since many years. The plaintiff is in exclusive possession and enjoyment of the suit property which is forming Eastern side of CTS No. 2688/1 and also she has been tethering her goats in the open space of the suit schedule property and defendants 1 and 2 are in possession and enjoyment of the house property situated towards Western side of CTS No. 2688/1. The plaintiffs mother-in-law with an evil intention to deprive the rights of the plaintiff and her husband of their legitimate share in CTS No. 2688/1, executed a document styled as Sale Deed dated 20.5.1989 mentioning that the property is sold to defendants 1 and 2 for consideration of Rs. 45,000/-. It is the further case of plaintiff that plaintiff''s husband died on 15.04.1991. When the plaintiff went to get the body of her husband from the District Civil Hospital, Belgaum, the defendants with the help of others removed all the belongings of the plaintiff from the suit schedule property and thrown the same on road. When the plaintiff questioned the said acts, the defendants 1 and 2 informed that they have purchased the suit schedule properties and they are not allowing the plaintiff to stay in the suit schedule property. In turn, the plaintiff informed the defendants 1 and 2 that she is the owner of suit schedule property and that of suit open space and they have no manner of right to oust her from the suit property. The plaintiff convened the meeting of Jamat and the defendants did not hear the words of the elders and also tried to dispossess the plaintiff from the suit schedule property. Hence, the plaintiff has filed the present suit seeking declaration of her right over the suit schedule property by way of adverse possession and contended that plaintiff has been in possession and enjoyment of the suit schedule property for more than 12 years to the knowledge of the defendants without any disturbances from defendants and her possession over the suit property is without title to the same to her and as against the rightful title of defendants. The possession of the plaintiff is open, public and hostile to that of defendants'' title over the suit property. Such being the case, the defendants with the help of their henchmen tried to dispossess the plaintiff from the suit schedule property. Therefore, the plaintiff was constrained to file the suit.

The defendants filed written statement and denied entire case of the plaintiff and contended that plaintiff has been in possession of two rooms measuring 30''.4" North to South and 16''.10" East to West and has been utilizing latrine which is situated on the portion which is in possession of the defendants. The defendants and their family are using the open space as owners. The open space is in possession of the defendants 1 and 2. The entire suit schedule property has been purchased by defendants 1 and 2 under registered sale deed from their mother. During the lifetime of their mother, their brother who is the husband of plaintiff died and plaintiff was permitted to reside in the two rooms of the suit schedule property and she has been in permissive possession. Accordingly, prays for dismissal of the suit.

On the basis of the pleadings, the Trial Court framed the following issues:

Whether the plaintiff proves that she is in adverse possession of the suit property for more than 12 years proceeding the suit, openly peacefully, uninterruptedly, to the knowledge of the defendants and in denial of their title?

Whether the plaintiff proves that she has become the exclusive owner of the suit property by doctrine of adverse possession?

Whether the defendants prove that the alleged possession of the plaintiff was permissive as licensee and the doctrine of adverse possession has no application?

Whether the plaintiff further proves that the defendants are interfering and disturbing with her peaceful possession over the suit property as alleged?

Whether the plaintiff is entitled to the relief of declaration as well as permanent injunction as prayed for?

What order or decree?

In order to establish her case, plaintiff was examined as PW. 1 and examined two more witnesses as PW. 2 and P.W. 3 and marked documents Ex. P. 1 to P. 13. The defendant No. 2 is examined himself as DW. 1 and got marked documents as Ex. D. 1 and D. 2.

After considering the entire material on record, the trial court came to the conclusion that plaintiff is in peaceful possession and enjoyment of suit schedule property for more than 12 years as owner by virtue of adverse possession openly, peacefully and uninterruptedly to the knowledge of the defendants and granted injunction as prayed for.

Against the said judgment and decree, defendants filed R.A. No. 937/2009 before Fast Track Court and District and Sessions Judge, Belgaum, who after hearing both parties by the impugned judgment and decree has allowed the appeal in-part and modified the judgment and decree in O.S. No. 482/2005 and set aside the declaration that plaintiff is the owner of suit schedule property by way of adverse possession and granted permanent injunction in favour of the plaintiff only in respect of 2 rooms situated in the suit schedule property and restrained the defendants from dispossessing the plaintiff from the two rooms situated in the suit schedule property without due process of law.

Against the said judgment and decree of the lower appellate court, the present appeal is filed by the plaintiff.

I have heard the learned Counsel for the appellant. The learned Counsel for the respondents is absent.

Sri. V.S. Koujalagi, learned Counsel for the appellant has contended that the lower appellate court erred in coming to the conclusion that the plaintiff has failed to prove the title by way of adverse possession, when the defendants themselves have admitted in their pleadings as well as in the oral evidence that the plaintiff is in possession of suit schedule property. Therefore, the impugned judgment and decree of the lower appellate court cannot be sustained in law. He also contended that the plaintiff is in possession of the suit schedule property adverse to the interest of defendants 1 and 2 for more than 12 years and thus the plaintiff has proved all the ingredients of adverse possession. Therefore, the impugned judgment and decree of the lower appellate court cannot be sustained in law and it is liable to be set aside.

I have given my thoughtful consideration to the arguments advanced by learned counsel for the appellant and perused the entire material on record.

The plaintiff filed the suit seeking for the relief of declaration declaring that she is the absolute owner of suit schedule property by way of adverse possession and sought for permanent injunction against the defendants. In her plaint the plaintiff has not admitted the ownership of defendants 1 and 2. In fact, in the plaint she has categorically stated that she is having interest in the suit schedule property and to deprive her share and her husband''s share, her mother-in-law has executed the sale deed in favour of defendants 1 and 2, which reads as under:

"The plaintiff and that of the defendants family are staying in the said CTS No. 2688/1 since many years. That the plaintiff is in exclusively possession of the suit property which is forming eastern side of CTS No. 2688/1 and tethering her goats in the suit open space and earning her livelihood. That the legal heirs of the defendant No. 1 & defendant No. 2 are in possession and occupation of the house property situate towards the western side of CTS No. 2668/1. That prior to 1989 the said CTS No. 2688/1 was standing in the name of the plaintiffs mother-in-law. That the plaintiffs mother-in-law with an evil intention to deprive the plaintiff and her late husband of their legitimate share in CTS No. 2688/1 executed one document styled as Sale Deed on 20'' May 1989 wherein it is shown that the property is sold to the deceased defendant No. 1 and defendant No. 2 for a consideration of Rs. 45,000/-."

In order to prove her case, plaintiff examined herself as PW. 1 and also examined two witnesses as PW. 2 and PW. 3 and produced 13 documents as Ex. P. 1 to P. 13. The trial court proceeded to decree the suit on the basis of evidence of PW. 1 to the effect that, plaintiff is claiming her exclusive possession over the suit schedule property for more than 12 years without any disturbance from any body and she has perfected her title by way of adverse possession. Therefore, she is entitled to relief sought for in the suit ignoring the material evidence on record. In the entire impugned judgment, the trial court has not discussed the evidence of PWs. 1 to 3 and admissions made by P.W. 1 to the effect that she is having share in the suit schedule property. In one breath the plaintiff is claiming right on the basis of adverse possession and in another breath, she is claiming her right on the basis that defendants 1 and 2 and her husband are full brothers and she is entitled to her husband''s share after the death of her husband. The said aspect has not at all been considered by the trial court while passing the decree in favour of the plaintiff The trial court failed to notice that if any person filed suit based on adverse possession, the plaintiff or the person who filed the suit should admit title of defendants over the suit schedule property. In the present case, plaintiff at one breath stated she is having share in the suit schedule property and in another breath stated that she is in possession of suit schedule property for more than 12 years adverse to the interest of defendants 1 and 2. The defendants 1 and 2 admitted in the written statement as well as in evidence, that plaintiff is in possession of only two rooms existing in the suit schedule property. The said material aspect has not been discussed by the trial court. On re-assessing the entire pleadings and oral and documentary evidence on record, the lower appellate court recorded a specific finding that, at page 2 of the plaint the plaintiff has stated that plaintiff''s deceased husband and the defendants'' family had one ancestral house bearing CTS No. 2688/1 situated at Kasai Galli, Belgaum. The plaintiff and defendant''s family are staying in the said CTS No. 2688/1 since many years. At para-3 of the plaint, it is stated that when the plaintiff questioned the defendants they said they have purchased the suit property and they are not going to allow plaintiff to stay in the suit property. The Plaintiff in reply informed the defendants that, she is the owner of the suit property and that the defendants have no manner of right to oust her from the suit property. This clearly establishes that the plaintiff claims independent right and not on the basis of adverse possession. Further the plaintiff has contended that plaintiff''s mother-in-law with an evil intention to deprive the plaintiff of her late husband''s legitimate share in CTS. No. 2688/1 executed a document purporting to be the sale deed on 20.5.1989 wherein it is clearly stated that the suit schedule property is sold to defendants for consideration of Rs. 45,000/-. This clearly establishes that plaintiff claims her right over suit schedule property other than the title by way of adverse possession. Further, it clearly establishes that plaintiff has been denying the ownership of defendant Nos. 1 and 2 over the suit schedule property. In her cross examination P.W. 1 at page-10 of her evidence she has stated that:

The lower appellate court also recorded a finding that the evidence of plaintiff clearly indicate that she has been asserting her right over the suit schedule property not by way of adverse possession but on the basis of some interest in the suit schedule property through her husband and she also denied ownership of defendants 1 and 2 over the suit schedule property. As stated above, one of the most important ingredients of adverse possession is that a person who claims adverse possession has to accept or admit the ownership of opposite party. In the present case, plaintiff denied the ownership of defendants 1 and 2 and hence she cannot claim adverse possession against defendants 1 and 2. Apart from this, the plaint averments show that the plaintiff has been claiming her right through her husband. On this count also, the plaintiff cannot claim title by way of adverse possession. Therefore, the plaintiff has failed to establish her exclusive possession over the open space mentioned in the hand sketch and has failed to prove her title by way of adverse possession and the said aspect of the matter has not been considered by the lower court. The said important aspect and ingredients of principles of adverse possession has not been considered by the trial court and the appellate court has also stated that defendants 1 and 2 have admitted possession of plaintiff in respect of two rooms existing on the suit schedule property. Accordingly, the lower appellate court has allowed the appeal in-part and modified the judgment and decree in passed O.S. No. 482/2005 and set aside the judgment and decree declaring the plaintiff as owner of suit schedule property by way of adverse possession and restrained the defendants from dispossessing the plaintiff from two rooms situated in the suit schedule property without due process of law, in view of the pleadings and admissions made by defendants 1 and 2. The said judgment and decree of the lower appellate court is in accordance with law and no interference is called for under Section 100 of the Code of Civil Procedure.

The appellant has not made out any substantial question of law to consider the present appeal. Accordingly, the appeal is dismissed at the stage of admission.