Ningappa vs Kusuma

Anand Byrareddy, J—Heard the learned Counsel for the appellant and the learned Counsel for the respondent.

The appellant was the plaintiff before the trial court. The suit was one for declaration and possession. It was the case of the plaintiff that he was the owner in possession of land bearing Survey No. 93/1, 93/2 and 95 measuring in all 2 acres 19 guntas of Laggere village, Yeshwanthpur Hobli, Bangalore North Taluk. The plaintiff claimed that he had formed a residential layout in the said lands and one such house site formed in the layout was site bearing No. 17, which is described in the suit schedule as measuring east to west 40 feet and north to south on western side 31 feet, eastern side 36 feet.

It is contended that the defendant, who was an utter stranger was seeking to interfere with the property. The plaintiff was said to be suffering from several serious illnesses and was unaware of the developments over the suit schedule property as he had not visited the property over one year on account of ill health. In the first week of January 2007, when he visited the suit schedule property, to his shock and surprise, he found that defendant had put up a pucca residential house in the suit schedule property and on a further inquiry, he came to know that the defendant had constructed a house about six months prior to the said date and had occupied it. It was the plaintiffs case that he had never parted with the suit schedule property and therefore approached the court seeking declaration of title and for recovery of possession of the suit schedule property.

The defendant, on entering appearance, had filed written statement and contended that the suit schedule property was purchased by him from the plaintiff through his power of attorney. The defendant contended that the plaintiff had sold a site bearing No. 17, formed in land bearing Survey No. 95 in favour of one Vittala Rao as early as on 12.5.1982 and the plaintiff had also executed a General Power of Attorney in favour of Vittala Rao, which was neither revoked nor cancelled and the said General Power of Attorney was coupled with interest. Vittala Rao, who was in possession and enjoyment of the suit schedule property, had conveyed the same to the defendant 15 years prior to the suit. The defendant is in possession and enjoyment of the same. The revenue records in respect of the site has been in favour of the defendant and it is on that basis that he has constructed a building. He has also paid the betterment charges to the local authority and has obtained the khata certificate in his favour. He has obtained service connections like electricity, water and sewerage, which would clearly establish his long undisturbed possession over the suit schedule property as owner thereof. The sale deed in favour of the defendant was executed as on 23.6.2004 and hence sought dismissal of the suit.

Incidentally, it was also stated that though the plaintiff was unaware of the possession of the defendant for more than 25 years, the plaintiff had failed to question the right under which the defendant was in possession and therefore, she had perfected her title in respect of the suit schedule property by way of adverse possession. The court below, on the basis of the pleadings of the parties, had framed the following issues:--

"1. Whether the plaintiff proves his title over the suit schedule property?

Whether the plaintiff proves that the defendant had trespassed into the suit schedule property and illegally put up a small house about 6 months prior to filing of the suit in the suit schedule property?

Whether the defendant proves the she acquired title to the suit schedule property by way of adverse possession as alleged?

Whether the plaintiff is entitled for a decree of possession after demolition of the structure existing on the sp as prayed for?

Whether the subject matter of the suit is not properly valued and the court fee paid is not sufficient?

Whether the suit as filed by the plaintiff is not maintainable under the law?

Whether the plaintiff is entitled for a decree as prayed for?

What order or decree?"

The Court below has answered all the issues in the negative and dismissed the suit. It is that which is under challenge in the present appeal.

The learned counsel for the appellant would point out that the reasoning of the court in dismissing the suit is cryptic and brief In that, the court below has proceeded to hold that the suit is filed in respect of a site bearing No. 17 said to have been formed in land bearing Survey Ni.93/1, 93/2 and 95 of Laggere village and therefore it was for the plaintiff to prove that the defendant had also claimed that the defendant had purchased the very same site from her husband, who had purchased it from the plaintiff The boundaries and measurement to show that the suit schedule property namely, a house site was situate within the boundaries mentioned in the suit schedule and it was on part of the land purchased by him originally in land bearing survey Nos. 93/1, 93/2 and 95. In this regard, the plaintiff having produced Exhibits P.1 to P.5 of various dates between the years 1975 and 1978, all of which related to parts of lands bearing survey numbers as aforesaid, there is no indication of formation of any layout as sanctioned by any competent authority. The layout sketch produced by the plaintiff had been negated as being nebulous document, not approved by the competent authority and therefore, proceeded to hold that the evidence before the court was not sufficient to prove title or interest in the suit schedule property by the plaintiff.

Secondly, the court has found that the details of encroachment and the knowledge of such encroachment is not specific and the plaintiff had also not produced any documents to show that after forming a residential layout, he had sold all the sites so formed, except the suit schedule site bearing No. 17 and the plaintiff had not produced any documents to show that other sites which were so formed had been sold and has proceeded to dismiss the suit and has even brushed aside the other issues as not being relevant or not being supported by evidence.

The learned counsel for the appellant would point out that there are certain glaring circumstances which the court below has overlooked, namely, that the defendant admittedly, has purchased the suit schedule property from her husband, who was claimed to be the power of attorney of the plaintiff and it is also denied that the site is apparently culled out of land purchased by the plaintiff When that is the admitted position, it was necessary to examine the case of the defendant, who has constructed a house and also claims to be living in the suit schedule property, as to the basis on which the defendant was in possession. The court below has only addressed in a summary fashion in the manner as aforesaid as to the plaintiffs case without anything more and has thereby conferred title on the defendant as it were in respect of the suit schedule property. It is this which results in a miscarriage of justice especially, when the defendant had raised a plea of adverse possession it presupposes that there is admission of the ownership of the plaintiff for the defendant to set up a plea of adverse possession. The learned Counsel would submit that there is hence every reason for the matter to be remanded to the court below for a fresh consideration of the plaintiffs case vis-à-vis the right under which the defendant seeks to sustain her possession of the suit schedule property.

While the learned counsel for the respondent, would contend that it was the plaintiff who had come to court seeking declaration of his title and it was for the plaintiff to satisfy the court in that regard by producing cogent evidence. Admittedly, the title deed which the plaintiff relies upon pertains to the extent of 2 acres and 19 guntas of agricultural land in several survey numbers whereas the suit schedule property is described as a site. It was therefore the burden of proof on the plaintiff to establish that a residential layout had been formed out of the land so purchased and after having sold all the sites so developed, the suit schedule property was the only site retained by the plaintiff and that it was never sold in favour of anybody and hence, the defendant could not claim the said site.

It is in this fashion that the trial court has addressed the case of the plaintiff and the finding having been returned in the negative adverse to the plaintiff, it cannot now be contended that the trial court should have conducted a roving inquiry when it was not so warranted given the very basis of the plaintiffs claim.

On the other hand, it cannot be said that the defendant was laying claim to the suit schedule property without any basis. Though it is evident that the defendant has not tendered evidence before the trial court nor produced any material documents, this was on account of the unfortunate circumstance of the defendant having defaulted not willfully, but on account of certain circumstances in not having produced material at the relevant point of time. In that regard, the learned counsel has filed an application seeking to produce several documents, on the basis of which, he would assert his title and seek to tender the same as additional evidence if this court should doubt the genuineness of the title of the defendant and hence seeks dismissal of the appeal.

On these rival contentions, in a suit for declaration of title and recovery of possession and in the face of the several issues having been framed, it is well settled that the trial court is required to give its findings on all the issues. As rightly pointed out by the learned Counsel for the appellant, the trial court has made short-shrift of the case of the plaintiff by proceeding to hold that what the plaintiff had purchased was an extent of agricultural land and the suit schedule property was described as a house site which was claimed to be culled out of that agricultural land and since the identity and boundaries could not be established with reference to the title deeds and the plaintiff having failed to prove his title over the said house site is certainly perfunctory the manner of disposing of the claim of the plaintiff A mere pragmatic approach was necessary in negating that the site which was described as the suit schedule property was not culled out of the land which was originally purchased by the plaintiff when admittedly, the defendant was also claiming that the plaintiff was indeed the owner of the land from whom the defendant's husband, as a power of attorney, had acquired a site which in turn had been sold under a sale deed to her. Therefore, there was no doubt that there was a controversy as to whether the sale in favour of the defendant was in fact, valid and binding on the plaintiff when it was the plaintiffs case that he had never executed a general power of attorney in favour of the defendant's husband or anybody else, pertaining to the suit site which was relevant to issue No. 2, namely whether the plaintiff proves that the defendant had trespassed into the suit schedule property and illegally put up a house. The defendant not having tendered evidence or having produced documents, the summary rejection of the suit has had the effect of conferring the title over valuable property in favour of the defendant or perfecting her possession.

Incidentally, the plea of adverse possession raised by the defendant was also glossed over by the court below though an issue is framed on the said aspect, namely, issue No. 3.

In answering issue No. 3, the court below has held as follows:--

"The defendant has not produced any evidence and according this issue is answered in the negative "

This would indicate that the court below has overlooked a very significant aspect and the trial court has surprisingly has not found anything amiss in the defendant having taken such a contention in the same breath while claiming ownership of the suit schedule property. Though inconsistent pleadings are permissible, if inconsistent pleadings have the effect of destroying each other and if inconsistent pleadings are self-destructing, they cannot be reconciled. The inconsistent pleadings are those which would stand on their own. In that, whether it is the plaintiff or the defendant who seeks to assert such inconsistent pleadings, would have to plead necessary facts in support of each such pleading and be able to sustain without defeating the other. The inconsistent pleadings should be mutually exclusive and should be able to stand on their own without there being destruction of each other. But if the plea of adverse possession is taken while also claiming ownership of property, it would be so wholly inconsistent that it cannot be reconciled. For the defendant is accepting the ownership of the plaintiff in raising the plea of adverse possession which is impermissible. The court below ought to have noticed this incongruity.

The learned counsel for the respondent however, would candidly contend that it is the adventurism of the counsel, who may have taken such a plea without the knowledge of his client and can be attributed to sheer want of diligence. This, the learned counsel, contends with impunity for it was not he who had taken such a pleading before the trial court. In any event, it is for the defendant to take corrective measures of any such inconsistent pleading, if the law so permits.

On an overall view of the manner, in which the trial court has dealt with the case, it is necessary to observe that the evidence of the parties is not complete. In that, the learned counsel for the respondent would point out that the respondent did not have proper opportunity to tender evidence and though there was ample evidence in his favour to support his case, the proceedings had moved with some expedition and at a particular stage, the respondent was deprived of his opportunity to tender evidence and would submit that if this court is inclined to allow the appeal and remand the matter for fresh consideration of the plaintiffs case, it would be just and necessary to permit the defendant also to tender evidence in support of her case apart from taking corrective measures insofar as inconsistent pleadings are concerned.

Accordingly, the appeal is allowed. The judgment of the court below is set aside. The matter is remanded for fresh consideration from the stage of permitting the plaintiff to tender any additional evidence, if any. Though the matter would have to recommence from the stage of the defendant's evidence, it is claimed by the plaintiff that in view of subsequent events, it would be necessary to supplement the pleadings by way of amendment. While the defendant also would seek to take corrective measures in respect of the pleadings. Therefore, the stage is left open for the trial court to proceed in accordance with law. It is also made clear that the defendant shall not alienate the suit schedule property during the pendency of the proceedings on such remand. The parties to appear before the trial court without further notice on 29th July 2015.