The burden of proof lies with the party asserting a fact, and a suit for possession is maintainable only if the denial of title raises a cloud on the plaintiff's title.

JUDGMENT :

K.S. Mudagal, J.

This second appeal of defendant arises out of judgment and decree dated 17.12.2014 in R.A.No.26/2010 passed by I Additional District Judge, Dakshina Kannada, Mangaluru.

2. By the impugned judgment and decree, First Appellate Court dismissed the appeal and confirmed the judgment and decree dated 27.11.2009 passed by the Principal Civil Judge (Sr. Dvn.) and C.J.M., Mangaluru in O.S.No.67/2007.

3. By the said judgment, trial Court had decreed the suit of plaintiff for possession of suit schedule property and granted mesne profits at the rate of Rs.50/- per day from 10.02.2007 till defendant delivers possession of the property to the plaintiff.

4. Respondent was the plaintiff and appellant was the defendant before the trial Court. For the purpose of convenience, parties will be referred to henceforth with their ranks before the trial Court.

5. Subject matter of the suit was house property bearing Door No.25-14-817 situated at Jappinamogaru Village of Mangaluru Taluk carved out of Sy.No.5-1A.

6. The case of the plaintiff in brief is as follows:

That he purchased the suit schedule property under the registered sale deed dated 15.11.2001 from one Ms.Angeline Pinto and rectification deed dated 18.12.2001. Defendant was the relative of Ms.Angeline Pinto and he was in possession of the property. At the time of purchase, defendant represented that he would vacate and surrender the possession of the property within one year, which he did not comply despite requests. Therefore, plaintiff got issued notice dated 24.01.2007 revoking the license and demanded for possession of the property, which was not complied. Therefore, he sought decree for possession and mesne profits at the rate of Rs.100/- per day from the date of notice.

7. Defendant contested the suit denying the execution of the sale deed and rectification deed by Ms.Angeline Pinto. He contended that as per the documents, sale deed was executed by one Mr.Lancy Pinto as Power of Attorney holder of Ms.Angeline Pinto and execution of the said Power of Attorney was also disputed. He contended that all those documents were forged and concocted one and the alleged rectification deed was registered subsequent to the death of Ms.Angeline Pinto. He claimed that Ms.Angeline Pinto was spinster and on her death he being her nephew, property devolved on him and his brother.

8. On the basis of such pleadings, the trial Court framed the following issues:

(1) Whether the plaintiff proves that he became the owner of the suit schedule properties under the registered sale deed dated 15.11.2001 and rectification deed dated 18.12.2001?

(2) Whether the plaintiff proves that the defendant is in permissive possession of the suit schedule properties under his previous vendor ?

(3) Whether the plaintiff is entitled for possession of the suit schedule properties ?

(4) Whether the plaintiff is entitled for past mesne profits at Rs.1,100/- and future mesne profits at the rate of Rs.3,000/- p.m. as prayed ?

(5) Whether the defendant proves that he has perfected his title to the suit schedule properties by way of adverse possession ?

(6) What decree or order ?

9. In support of the case of the plaintiff, his Power of Attorney was examined as PW.1 and Ex.P1 to Ex.P9 were marked. Defendant was examined as DW.1 and on his behalf Ex.D1 to Ex.D11 were marked.

10. The trial Court after hearing the parties decreed the suit on the following grounds:-

(i) Ex.P2 and Ex.P3 - the sale deed and rectification deed are the registered documents. Therefore, they carry presumption of execution of the same.

(ii) The defendant did not challenge the sale deed and rectification deed by filing any suit.

(iii) The defendant has not replied the notice Ex.P7 denying the documents set up by the plaintiff.

(iv) Though rectification deed Ex.P3 was registered on 26.04.2002, after the death of Ms.Angeline Pinto, as per Section 47 of the Registration Act, 1908, the document operates from the date of its execution. Therefore, later registra