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N. Aswathama & Anr. Versus P. Prakash

CIVIL APPEAL NO. 4125 OF 2009 - Dated:- 21-4-2009 - R. V. Raveendran, Harjit Singh Bedi, JJ. ORDER R. V. Raveendran, J. Leave granted. 2.The appellants are the plaintiffs in a suit (OS No.2667/1987 on the file of the City Civil Court, Bangalore) filed against the respondent, for declaration of title, possession, permanent injunction and mesne profits in regard to site bearing no.19 (old site no.8), situated at 2nd Cross, Subedarpalya, Vyalikaval, Bangalore, measuring 30 x 35 . 3. In brief, the c .....

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prolonged illness died in December 1966 leaving all his properties to his sons (plaintiffs) under his will dated 15.7.1956. The plaintiffs were unaware that their father owned the said plot, as before and at the time of his death, they were prosecuting their studies and were not conversant with their father s affairs. Their father had taken some loan from Canara Bank and as security therefor had mortgaged the said site and other properties. The Bank obtained a decree for sale of the mortgaged p .....

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-respondent resisted the suit by denying the title of plaintiffs and claiming title to the suit property in himself. According to him, the said property belonged to one Channabasavanna; that after his death, the said property devolved upon his wife Gowramma; that ever since 1962, he was tethering his cows in the suit property with the consent of Channabasavanna and after the death of Channabasavanna continued as Gowramma's tenant; and that ultimately the said Gowramma sold the schedule prope .....

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suit filed by the appellants was barred by limitation, as he had perfected his title by adverse possession. 5.The trial court framed appropriate issues, relating to title of plaintiffs, possession, adverse possession, limitation and the reliefs sought. After appreciating the oral and documentary evidence, the trial court, by a detailed judgment, decreed the suit on 2.1.2004. It found that the plaintiffs had established their title to the suit property and that the defendant neither established h .....

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the Karnataka High Court by judgment dated 12.9.2006, reversed the trial court s judgment and dismissed the suit. The High Court, without much discussion, held that plaintiffs had failed to prove that they had better title than the defendant and had also failed to prove that the suit property in the possession of defendant was the property to which they claimed title as having been purchased by their father under Ex.P2 dated 21.4.1950. The plaintiffs sought special leave of this Court, to file a .....

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d request, on 10.12.2007, this Court noted that it will go into the merits of the matter also and for that purpose called for the records. We have heard the learned counsel. 7.We find that the High Court did not formulate any points for consideration, nor examine the relevant issues or evidence. It reversed the well considered judgment of the trial court mainly on the ground that katha number of the suit property, given in two of the documents relied by the plaintiffs did not tally. It overlooke .....

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based on mere conjectures and surmises, or when its decision relies upon inadmissible evidence or ignores material evidence or when it draws inferences and conclusions which do not naturally or logically flow from the proved facts, the appellate court is bound to interfere with the findings of the trial court. It is equally well settled that where the trial court has considered the entire evidence and recorded several material findings, the first appellate court would not reverse them on the bas .....

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i) whether plaintiffs have established their title to the schedule property and entitlement to possession; (ii) whether defendant has proved his title to the schedule property; (iii) whether defendant has perfected his title by adverse possession and therefore the suit is barred by limitation. Re : Question (i) 10.Plaintiff no.1, examined as PW1, stated that the suit plot was allotted to Hanumakka, that she sold it to Bellary Muniswamy Pillai, who in turn, sold it to his father. The relevant tit .....

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Muniswamy Pillai in regard to the schedule plot wherein she recites that she had purchased the said site no.8 measuring 30 x 35 in the sites laid out by the government in Subedarpalya. Ex.P1 is the sale deed dated 21.4.1950 executed by Bellary Muniswamy Pillai conveying the said plot to Narayanswammappa. Ex.P4 is the endorsement issued by the Village Panchyat showing that Narayanaswamappa was the Kathedar of the suit property (though it mentions only the khata number and not the site number). E .....

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reon by mortgaging the said property in favour of Canara Bank. 11.The next question is whether plaintiffs have established that site no.8 in regard to which they produced the documents of title and established the title, is the suit property in the occupation of defendant. The case of the plaintiffs is that the schedule property is situated in a small layout in Subedarpalya formed by the government, shown in the sketch Ex.P15. The defendant has admitted that the property adjoining the suit prope .....

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who in turn sold it to K. Muddukrishna under deed dated 6.11.1978. The measurements of the said site no.9 are shown as 30 ft. x 35 ft. These documents also show that site No.8 (suit property) belonging to Narayanaswamappa is situated to the west of the said site no.9. The boundaries and measurements in Ex.P11 and P12 are in consonance with the boundaries of suit property in the title deeds of plaintiffs (Ex.P1 and P2) and the boundaries and measurements in the plan produced by the plaintiff as p .....

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ul possession of the defendant. 12.The High Court has neither discussed the evidence relating to identity of the suit property nor held that the trial court s finding that plaintiffs have established their title and identity of the suit property was erroneous. The High Court has rejected the entire case of the plaintiffs merely on the ground that in the mortgage suit of the Bank, the Katha number of the property is wrongly given. The plaintiffs have offered a simple and acceptable explanation by .....

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the suit property, will be entitled to decree for possession, unless their right to the suit property was extinguished, by reason of defendant being in adverse possession for a period of twelve years prior to the suit. Re: Question (ii) 14. The defendant has claimed title to the suit property. He, however, contends that the suit property in his occupation bears the site no.18A and measures 25 x 40 and that the said plot was sold to him by Gowramma on 18.11.1985. The defendant contends that the .....

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ecited about the previous title. The sale deed dated 18.11.1985 (a certified copy which is produced as Ex.D1) said to have been executed by Gowramma, no doubt purports to convey site No.18A measuring 25 x 40 to the defendant. The said sale deed recites that the vendor Gowramma was appointed as guardian of her husband Channabasavanna who was a lunatic; that he had purchased the property, of which what was being sold by her to defendant, was a part, under registered sale deed dated 28.8.1959 (regi .....

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ave produced and marked as Ex. P21 and Ex.P22, certified copies of the petition and order in Misc. C.No.444/1964, filed by Gowramma praying for grant of letters of administration. They show that Gowramma sought letters of administration in regard to two properties left by her husband and that by order dated 19.10.1964 the court granted such relief. The two properties were (i) premises no.9, Fifth cross, Malleswaram, Bangalore (earlier site no.8, in Sy. No.9 of Kayamgutta Ranganathapura, Kasaba H .....

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ch was situated three sites away on the south of suit site no.8 as is evident from Ex.P15. Defendant did not produce the previous sale deed dated 28.8.1959, as it would apparently show that Gowramma was not the owner of suit property (site No.8), but some other property in the same area, that is plot no.17. Thus Gowramma did not inherit site no.8 (corresponding to municipal no.19 and subsequently referred to as no.18/1) of Subedarpalya, Vyalikaval which is the suit property from her husband, nor .....

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ramma, defendant cannot claim title to suit property, as Gowramma never owned the suit property. It is also of some interest to note that the sale deed dated 18.11.1985 recites that Gowramma had already sold portions of the plot (acquired under deed dated 28.8.1959 and order in Misc.C No.444/1964) to others. If so, it is doubtful anything remained in site no.17 for sale. But it is unnecessary to examine that aspect as we are not concerned with site no.17 at all in this case. The sale deed dated .....

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fendant. It is pointed out that the defendant had specifically contended that he was the tenant of the schedule property from 1962 until he purchased the property on 18.11.1985. According to plaintiffs, this was a case of permissive possession and not adverse possession. It is submitted that the defendant having put forth a case of permissive possession, cannot put forth a plea of adverse possession. It was submitted that even assuming that there was a long and continuous possession for more tha .....

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rmissive possession and adverse possession : As regards the first plea, it is inconsistent with the second plea. Having come into possession under the (sale) agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., up to completing the period his title b .....

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ell settled. To establish a claim of title by prescription, that is adverse possession for 12 years or more, the possession of the claimant must be physical/actual, exclusive, open, uninterrupted, notorious and hostile to the true owner for a period exceeding twelve years. It is also well settled that long and continuous possession by itself would not constitute adverse possession if it was either permissive possession or possession without animus possidendi. The pleas based on title and adverse .....

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view that the decision in Mohan Lal (supra) relied on by the plaintiffs is inapplicable, as the defendant therein had pleaded that he was in possession, having obtained possession in part performance of a sale agreement. As the defendant therein admitted that he came into possession lawfully under an agreement of sale and continued to remain in such possession, there was no adverse possession. This case is different, as the defendant did not contend that he entered possession under or through t .....

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tinued for more than 12 years, he could claim to have perfected his title by adverse possession. There is considerable force in the contention of defendant provided he is able to establish adverse possession for more than 12 years. When a person is in possession asserting to be the owner, even if he fails to establish his title, his possession would still be adverse to the true owner. Therefore, the two pleas put forth by the defendant in this case are not inconsistent pleas but alternative plea .....

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thly rent of ₹ 30 which was later increased to ₹ 40/- and again to ₹ 60/- and that he continued as such tenant till 18.11.1985 when he purchased the suit property from Gowramma. We have already held that Gowramma did not own the suit property, but apparently owned a property three or four sites away from suit property. We have also held that no title was conveyed to defendant under the deed dated 18.11.1985. The only material produced by defendant to show that he was in possess .....

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for unauthorized construction in the schedule site. Here again, the defendant did not produce either the plaint or the judgment. The plaintiffs produced and marked the judgment as Ex.P13. The said judgment shows that the defendant did not claim that the property belonged to Gowramma or that he was the tenant of Gowramma in the said site. On the other hand, he merely alleged that he was in possession of plot No. 18A. The Bangalore City Corporation denied his ownership and possession and contended .....

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court by its judgment dated 18.9.1979 held that defendant herein was not the owner of the property. It also held that he had not perfected his title by adverse possession. But as defendant herein was found to be in possession of the plot, the court granted an injunction against the Bangalore City Corporation, on the ground that even a trespasser was entitled to protect his possession. The description given by defendant in regard to suit property is of some interest and is extracted below : Prop .....

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ted to the South of site no.8 divided by a conservancy lane. He stated that the defendant was a tenant under one Muddukrishna in a portion of one of the three houses situated in the adjoining site no.9 known as Perumal s compound. He has further stated that about 10 years prior to the date of his evidence (19.9.2002), the defendant put a house in the back portion of site no.8. This clearly shows that the defendant mixed up the description of two properties to create an imaginary property. The de .....

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in the injunction suit filed by defendant against Corporation of City of Bangalore does not fit the suit property at all. 22.Plaintiffs also examined one Muniappa as PW3 who states that he has been staying in the house opposite to site no.8 (on the Northern side) since 1950 and that one Perumal was the owner of the adjoining site no.9 wherein he had constructed three small houses; that Perumal had sold the property no.9 to Muddukrishna; and that defendant was staying in one of the houses no.9 as .....

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