Savitramma and Others vs Mahadevamma and Others

Aravind Kumar, J.—1. This is a plaintiffs'' first appeal assailing the correctness and legality of judgment and decree dated 28.02.2013 passed by the Senior Civil Judge at Yadgiri, in O.S. No. 22/2011 dismissing the suit for declaration.

Facts in brief which has lead to filing of this appeal can be crystallized as under:

Plaintiffs filed a suit for being declared as absolute owners in possession of suit lands contending inter alia that husband of defendant No. 1 and father of defendant Nos. 2 to 4-Siddalingappa Bhavikatti was the owner in possession and enjoyment of suit lands and had entered into an agreement of sale with the husband of plaintiff No. 1 and father of plaintiff Nos. 2 to 7-Venkat Reddy and had paid consideration amount of Rs. 6,000/- to the husband of defendant No. 1 and father of defendant Nos. 2 to 4-Siddalingappa Bhavikatti. It was the contention of plaintiffs that on account of father of defendant Nos. 2 to 4 failing to execute the registered sale deed, land in question was cultivated by Late Sri. Venkat Reddy. It was also contended that during the year 1973-1974 name of Venkat Reddy was entered in Column No. 12 of revenue records and said Venkat Reddy had sold 3 acres 25 guntas of land from out of total extent of properties to one Sri Baslingappa Kavali under a registered sale deed dated 15.10.1984 and handed over possession to said extent to him. It was further pleaded that name of Baslingappa Kavali was entered in revenue records and he has been cultivating the land as owner. It was further contended by the plaintiffs that Venkat Reddy was cultivating the suit lands i.e., Sy. No. 26 measuring 3 acres 1 gunta and Sy. No. 27 measuring 11 acres 37 guntas till his death and on his demise in the year 2007 plaintiffs have continued in possession. It was also contended that name of Venkat Reddy was appearing in the revenue records from 1973-1974 till 2002-2003 and appeal preferred by defendant No. 2 questioning said mutation entry in REV/ROR/APPL. No. 45/2002-03 was allowed and mutation entry made in the name of Venkat Reddy came to be set aside. It was also contended that plaintiffs are in peaceful possession openly as owners of the suit schedule properties and they have perfected their title to the suit schedule properties by adverse possession. It was also contended by the plaintiffs that said Venkat Reddy filed a suit in O.S. No. 36/2004 for the relief of declaration and injunction and said suit came to be withdrawn by his legal representatives with liberty to file fresh suit on the same cause of action and as such, present suit has been filed on account of obstruction being caused for peaceful possession and enjoyment of suit lands and title of the plaintiffs being denied. Hence, they have sought for suit being decreed.

On service of suit summons, defendant No. 2 appeared, filed detailed written statement denying the averments made in the plaint. It was contended that there was no such agreement entered into with the husband of plaintiff No. 1 and father of plaintiff Nos. 2 to 7-Venkat Reddy by father of defendant No. 2 - Siddalingappa Bhavikatti. It was further contended that at no point of time, Venkat Reddy cultivated the lands in question and he had illegally got his name entered in the revenue records and defendant No. 2 filed appeal before the jurisdictional Assistant Commissioner who after notifying the Kathedar, adjudicated the claim and set aside the mutation entry in the revenue records. It is further contended by defendant No. 2 that plaintiffs are not in possession and they are in possession of suit lands and question of plaintiffs becoming owners of suit lands by adverse possession does not arise. All other averments made in the plaint came to be denied.

On the basis of pleadings of parties, Trial Court formulated the following issues for its consideration:

i. Whether the plaintiffs prove that, they are the owners and in actual possession of suit lands?

ii. Whether the plaintiffs prove that, they became the owners of suit lands by way of adverse possession?

iii. Whether the suit is properly valued and Court fee paid is correct?

iv. Whether the suit is barred by limitation?

v. Whether the plaintiffs are entitled for the reliefs sought for in the suit?

vi. What order or decree?

In order to substantiate averments made in the plaint, plaintiff No. 2 got himself examined as PW.1 and also examined one witness as PW.2 and in all, produced 31 documents and got them marked as Exs.P-1 to P-31. On behalf of defendants, defendant No. 2 got himself examined as DW. 1 and in all, produced 21 documents and got them marked as Exs.D-1 to D-21. Learned Trial Judge after considering the arguments addressed by the respective learned Advocates and after evaluating the evidence tendered by them, by judgment and decree dated 28.02.2013 dismissed the suit.

Trial Court while evaluating the evidence tendered by the parties noticed that late Venkat Reddy in the suit O.S. No. 36/2004 filed by him had not whispered a word with regard to agreement of sale executed by husband of defendant No. 1 and father of defendant Nos. 2 to 4 based on which plaintiffs had now laid their claim. It was also noticed by the trial Court that said Venkat Reddy was not a layman and he was a Lawyer with experience and very well conversant with the Court procedure and as such, it came to be held that plaintiffs had utterly failed to prove that late Siddalingappa Bhavikatti had entered into agreement of sale with Venkat Rddy to sell suit lands by agreement dated 13.05.1966. It has also held that there was no consideration which was flown from late Venkat Reddy to late Sidddalingappa Bhavikatti. Trial Court has also noticed that insofar as revenue entries which were standing in the name of late Venkat Reddy had been challenged by defendant No. 2 by filing appeal before the Assistant Commissioner in REV/ROR/APPL No. 45/2002-03 and said appeal had been allowed on 19.01.2004 wherein the mutation entry which was in the name of late Venkat Reddy came to be set aside and name of late Siddalingappa Bhavikatti was restored and said order had attained finality.

Insofar as plea of plaintiffs that they have perfected their title to the suit schedule properties by adverse possession was also negatived and held that plaintiffs have failed to prove their possession over suit lands.

Yet another fact which swayed in the mind of the Trial Court to dismiss the suit was late Siddalingappa Bhavikatti undisputedly was the owner of the suit properties and he had given a declaration before the jurisdictional Land Tribunal under Section 66 of the Karnataka Land Reforms Act and had specifically declared that he is the owner in possession and enjoyment of the suit lands and application filed by late Siddalingappa Bhavikatti had been accepted by the authorities and held that lands held by him was within the ceiling limit. It was also noticed by the trial Court that wife of Siddalingappa Bhavikatti had filed a suit for partition in O.S. No. 10/2006 which came to be decreed and matter was pending in the final decree proceedings. As such, it has held that these facts cumulatively would indicate that defendants are the owners in possession and enjoyment of suit properties and it was supported by the records of rights Exs.D1 to D3. Hence, trial Court dismissed the suit by judgment and decree dated 28.02.2013.

It is the contention of Sri Shravan Kumar, learned Advocate appearing on behalf of Sri N. Krishnacharya appearing for appellants that judgment and decree passed by the Trial Court is erroneous and there has been improper appreciation of evidence, non-appreciation of evidence and non-consideration of material evidence which has resulted in miscarriage in the administration of justice. He would also submit that Trial Court has grossly erred in not considering the fact that RTC extracts from the year 1973-1974 till 2002-03 stood in the name of late Venkat Reddy which would establish that late Venkat Reddy was in possession as owner of the suit properties and had been exercising his ownership and as such, he had sold a portion of suit property to Sri Baslingappa Kavali under a registered sale deed dated 15.10.1984 and pursuant to said sale, revenue records in respect of land bearing Sy. No. 27 was further mutated and his name had been entered in the revenue records and he was in possession and enjoyment of said property. Non-consideration of these vital aspects according to Sri Shravan Kumar, learned Advocate for appellants has resulted in passing of an erroneous judgment and decree and as such, he seeks for setting aside the same by allowing the appeal and decreeing the suit.

Per contra, Sri Ameet Kumar Deshpande, learned Advocate appearing for respondents/defendants would support the judgment and decree passed by the Trial Court and contends that there is no error committed by the Trial Court and the very suit filed by the plaintiffs itself was not maintainable and even otherwise, suit for declaration based on an agreement of sale being not maintainable, it was liable to be dismissed and as such, by supporting the judgment and decree passed by the Trial Court, he prays for dismissal of the appeal. In support of his submission, he has relied upon the following judgments:

i. Achal Reddi, vs. Ramakrishna Reddiar and others reported in , AIR 1990 SC 553;

ii. Gurdwara Sahib vs. Gram Panchayat Village Sirthala and another reported in , (2014) 1 SCC 669;

Having heard the learned Advocates appearing for parties and on perusal of records and also judgments cited at the bar, this Court is of the considered view that following points would arise for consideration:

i. Whether suit filed by the plaintiffs for declaration of title to be declared as having perfected their title to the suit schedule properties by adverse possession is maintainable or not?

ii. Whether judgment and decree passed by the Trial Court suffers from any patent illegality namely, whether there has been erroneous appreciation of evidence, non-appreciation of evidence or improper appreciation of evidence calling for interference?

iii. What order?

Facts in detail having already been delved upon hereinabove and if narrated yet again would only be a repetition of facts and as such, without adverting to the facts in detail it would suffice if it is stated concisely and it reads as under:

Perusal of the plaint averments would clearly indicate that suit of the plaintiffs was based on an agreement of sale dated 13.05.1966. Plaintiffs contended that husband of plaintiff No. 1 and father of plaintiff Nos. 2 to 7 Venkat Reddy had entered into agreement of sale to purchase the suit schedule properties from the husband of defendant No. 1 and father of defendant Nos. 2 to 4 and had paid a sum of Rs. 6,000/- to the deceased-Siddalingappa Bhavikatti and claimed that possession was delivered under the said agreement. Defendants in their written statement specifically denied the execution of agreement of sale as also consideration said to having flown from late Venkat Reddy to late Siddalingappa Bhavikatti. Thus, bone of contention between the parties relates to agreement of sale dated 13.05.1966. On these pleadings, parties went for trial.

Re-point No. 1:

As noticed hereinabove, plaintiffs have asserted their title and possession to suit schedule properties based on agreement of sale dated 13.05.1966. It can be noticed at this juncture itself that when plaintiffs had based their claim on agreement of sale, it was incumbent on them to produce said deed. However, for reasons best known to them, they did not produce the same, except asserting this fact in their pleadings as well as in their evidence. Thus, very basis or the foundation on which they laid their claim stood vanished. Even otherwise, on the basis of pleadings when the claim of plaintiffs is considered it can be safely concluded that based on an agreement of sale title cannot be asserted as held by the Apex Court in the case of Achal Reddi vs. Ramakrishna Reddiar and others reported in , AIR 1990 SC 553, wherein it has been clearly held that agreement holder would not be entitled to raise a plea of adverse possession based on said agreement of sale. It has been held to the following effect:

In the case of an agreement of sale the party who obtains possession, acknowledges title of the vendor even though the agreement of sale may be invalid. It is an acknowledgement and recognition of the title of the vendor which excludes the theory of adverse possession. The well-settled rule of law is that if a person is in actual possession and has a right to possession under a title involving a due recognition of the owner''s title his possession will not be regarded as adverse in law, even though he claims under another title having regard to the well-recognized policy of law that possession is never considered adverse if it is referable to a lawful title.

In the light of aforestated position of law, plaintiffs cannot be allowed to contend that suit in question is maintainable.

Hon''ble Apex Court in the case of Gurdwara Sahib vs. Gram Panchayat Village Sirthala and another reported in , (2014) 1 Supreme Court Cases 669 has held declaration of ownership of land on the basis of adverse possession cannot be sought for by the plaintiffs. It has been held therein to the following effect:

"9. However, we also find from the reading of the judgment of the High Court that the High Court has refused the injunction observing that the appellant was not entitled to the same as it is the Gram Panchayat which is the owner of the property in dispute and as the appellant is in possession without any right, it has no right to seek injunction against the Gram Panchayat. This finding is totally perverse and, in fact, unnecessary. In the first instance, there was no occasion or reason for the appellant''s counsel to seek this prayer in the second appeal. As pointed out above, the relief of injunction had already been granted by the Civil Court and this portion of the decree had not been challenged by the respondents. Decree to this extent in favour of the appellant had attained finality. The first appellate Court also specifically recorded this fact and observed that by not challenging the judgment and decree passed by the learned Civil Judge, the respondents accepted that the appellant was in adverse possession of the land since 13.04.1952. We, thus, clarify that observations of the High Court that the appellant is not entitled to injunction, were unnecessary and beyond the scope of the appeal."

In the light of above law laid down by the Apex Court when the facts in hand are examined, the only irresistible conclusion which has to be drawn is that plaintiffs having raised a plea of having perfected their title to the suit properties by adverse possession did not produce agreement of sale and even otherwise, such plea being impermissible suit in question itself was not maintainable. Hence, trial Court has rightly held plaintiffs have failed to prove their possession. In view of the same, point No. 1 is answered against appellants and in favour of respondents/defendants.

Re-Point No. 2

Perusal of the judgment and decree in question would indicate that plaintiffs have contended that by virtue of agreement of sale in favour of late Venkat Reddy revenue records are mutated to his name and as such, he was the owner of suit schedule properties. Said revenue entries came to be questioned by defendant No. 2 in REV/ROR/APPL. No. 45/2002-03 and found in his favour viz., appeal came to be allowed on 19.01.2004 and said mutation entries came to be set aside. As such, presumption available under Section 132 of the Karnataka Land Revenue Act, stood was rebutted by the defendants by producing the said order and no infirmity can be found by the plaintiffs insofar as said finding recorded by the Trial Court. Trial Court has also noticed that alleged agreement holder being well-versed in Court craft namely, he being practicing Senior Lawyer cannot be heard to contend that having obtained an agreement of sale, would not have been enforced same against husband of defendant No. 1 and father of defendant Nos. 2 to 4 i.e., late Sri. Siddalingappa Bhavikatti. In this background, Trial Court has rightly appreciated the evidence and learned Advocate appearing for appellants though contended that there is erroneous appreciation of evidence, learned Advocate was unable to demonstrate as to what was the error committed by the Trial Court in this regard. Evidence available on record has been properly considered, analyzed, adjudicated and answered by the Trial Court which does not call for any interference at the hands of this Court.

In the light of discussion made hereinabove, I proceed to pass the following:

ORDER

i. Appeal is hereby dismissed.

ii. Judgment and decree passed in O.S. No. 22/2011 by Senior Civil Judge, Yadgiri, dated 28.02.2013 stands affirmed.

iii. Cost made easy.