Mahadev vs Shivashranappa

N. Ananda, J.—The defendant in O.S. No. 110/2007 who was successful before the trial court and unsuccessful before the I-Appellate court has filed this regular second appeal.

The learned counsel for appellant has raised following substantial questions of law:

(i) Whether the lower appellate court was justified in decreeing the suit when the plaintiff-respondent has admitted that the father of the appellant has asserted his title over the suit property?

(ii) Whether the lower appellate court was justified in reversing the finding of the trial court that the defendant has not proven his adverse possession over the suit property?

Heard Sri Ashok S Kinagi, learned counsel for the appellant and Sri Ameet Kumar Deshpande, learned counsel for the respondent.

The respondent-plaintiff had filed O.S. No. 110/2007 in respect of house property bearing TMC No. 2-187 (Old) 2-200 (New) consisting of three zinc sheets roofs and a Padasala, situate at Chattigalli, Humnabad Town. The appellant-defendant resisted the suit inter-alia contending that the original owner of the property namely Gangamma had received a sum of Rs. 500/- under receipt Ex. D-1 agreeing to sell the suit schedule property. Subsequently she had executed unregistered sale deed dated 01.07.1974 (Ex. D-3).

The parties have not-.disputed that the suit schedule property was originally held and left by one Gangamma. The plaintiff has contended that said Gangamma had executed a registered Will deed dated 21.02.1983 in favour of plaintiff bequeathing the suit schedule property. The said Gangamma died in the year 1984. Thereafter, O.S. No. 110/2007 was filed for declaration of title and recovery of possession of suit schedule property. The learned trial Judge on consideration of Exs. D-1 and D3 held that the father of the defendant and later the defendant were in continuous possession of the suit property adverse to the interest of plaintiff and dismissed the suit.

The learned Judge of the I-Appellate Court, on reconsideration of documents in Exs. D1 and D3 on which the defendant had founded his title and possession has held that these documents (Ex. D1 and Ex. D3) relate to open space and not to the suit property. The learned Judge of I-Appellate Court has held that the trial court without examining the contents of documents relied upon by the defendant, in particular Exs. D1 and D3 has erroneously recorded a finding that the defendant has perfected his title to suit schedule property by adverse possession.

On hearing the learned counsel for parties and after going through the documents Ex. D1 and Ex. D3, I find that these documents relied upon by the defendant to assert title or adverse possession, do not relate to the suit schedule property. These documents relate to an open space which is not the subject matter of the suit. In the circumstances, the learned Judge of I-Appellate Court was justified in reversing the findings of learned trial Judge.

The execution of registered Will dated. 21.02.1983 by deceased Gangamma in favour of plaintiff has not been seriously controverted by the parties. The documents relied upon by the defendant to prove adverse possession do not relate to suit schedule property which is a house property. In the circumstances, the learned Judge of the I-Appellate Court was justified in reversing the finding of the trial court that the defendant has perfected title by adverse possession.

In view of the above discussion, the aforestated substantial questions of law are answered as follows:

Question No. (i)-Affirmative

Question No. (ii)-Affirmative

In the result, I pass the following:

ORDER

The appeal is dismissed.