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IN THE HIGH COURT OF KARNATAKA
H.P. Sandesh, J.
P. Krishnaveni - Appellant
Versus
Sampath Raj - Respondent
Regular First Appeal No. 1757 of 2012
Decided On : 27-01-2020
SUIT FOR INJUNCTION - ADVERSE POSSESSION - LIMITATION ACT - COUNTER CLAIM - POSSESSION - OWNERSHIP - EVIDENCE ACT - SALE DEED - RELATIONSHIP - TRESPASS - BURDEN OF PROOF - ORAL AND DOCUMENTARY EVIDENCE -
Fact of the Case:
Plaintiffs filed a suit seeking permanent injunction against defendants from alienating, demolishing, and causing illegal dispossession of the suit schedule property. Plaintiffs claimed they were residing on the property for 70 years and were paying taxes to BBMP. Defendants claimed ownership of the property and sought possession, alleging that plaintiffs were trespassers. Plaintiffs filed a rejoinder reiterating their averments and contending that the counterclaim was not maintainable without a declaration.
Finding of the Court:
The court allowed the appeal, set aside the impugned judgment and decree, and remanded the matter back to the trial court for framing an issue with regard to dispossession and limitation, and recording further evidence. The court held that the trial court erred in dismissing the suit and allowing the counterclaim without considering the issue of limitation and dispossession. The court also held that the plaintiffs had not established their claim of adverse possession and that the defendants had not proved their claim of dispossession.
Issues: 1. Whether the plaintiffs have made out grounds to invoke Order 41 Rule 27 of Code of Civil Procedure and lead additional evidence as prayed for? 2. Whether the Court below has committed an error in dismissing the suit of the plaintiffs by not granting the relief of permanent injunction even though the plaintiffs were in exclusive possession of the suit schedule property? 3. Whether the Court below has committed an error in entertaining the counter claim of the defendants by granting possession in favour of the defendants? 4. Whether the Court below has committed an error in not considering the limitation even though there was no specific pleading in the plaint as well as in the counter claim and whether it requires interference of this Court on the point of limitation? 5. What Order?
Ratio Decidendi: 1. The court held that the trial court erred in dismissing the suit and allowing the counterclaim without considering the issue of limitation and dispossession. The court held that under Section 3 of the Limitation Act, it is the duty cast upon the Court below even in the absence of any pleadings with regard to limitation so as to raise the issue of limitation, which has not been done by the Trial Court. No issue has been framed by the Trial Court on the limitation, which involves mixed question of fact and law and hence, it requires evidence. 2. The court held that the plaintiffs had not established their claim of adverse possession. The court held that the plaintiffs did not dispute the sale deed of the father of the defendants. There was no cloud on the title of the defendants. P.W.1. himself admitted the sale deed executed in favour of the father of the defendants. Hence, the question of filing the suit for the relief of declaration does not arise.
Final Decision: The court allowed the appeal, set aside the impugned judgment and decree, and remanded the matter back to the trial court for framing an issue with regard to dispossession and limitation, and recording further evidence. The court also directed the parties to appear before the trial court on a specified date without expecting any separate notice.
JUDGMENT
H P Sandesh, J. - This appeal is filed challenging the judgment and decree passed in O.S.No.16572/2005 dated 13.07.2012 on the file of the XIII Additional City Civil Judge, Mayohall Unit, Bengaluru.
2. The parties are referred to as per their original rankings before the Court below to avoid confusion and for the convenience of the Court.
3. The appellants/plaintiffs have filed the suit seeking the relief of permanent injunction against the defendants from alienating the suit schedule property, from demolishing the suit schedule property and causing illegal dispossession of the plaintiffs from the suit schedule property bearing Old No.63, New No.10, I Main Road, Bazar Street, Gowthama Puram, Ulsoor, Bengaluru which is also morefully described in the schedule.
4. It is the case of the plaintiffs that plaintiff Nos.1 to 4 are residing on the western portion and plaintiff Nos.5 to 10 are residing on the eastern portion of the suit schedule property. The suit schedule property was owned by Smt. Andalammal and Sri A.P. Kodandapani, who were brother and sister. One Sri V. Ramachandran, resided with his brother, who is plaintiff No.1. Plaintiff Nos.5 to 10 are the legal heirs of Sri V. Ramachandran. After the death of Sri V. Ramachandran on 07.09.1994, plaintiff Nos.5 to 10 continued to reside in the suit schedule property. Another property bearing No.5/11, 4th Cross, Artillery Main Road, Bengaluru was occupied by Smt. Bhagyawathi. Then, the said property was sold by the defendants in favour of M/s. Pearl Builders and Developers on 21.02.2005. But, Smt. Bhagyawathi has refused to handover the keys of the said property to the defendants. Hence, defendant No.1 has demolished the building illegally. Then Smt. Bhagyawathi has complained before the police. The defendants are claiming the suit schedule property belonging to their father and that they are the sole owners of the same. But, the plaintiffs are residing in the suit schedule property by paying tax to BBMP for the last 70 years. Now, the defendants are trying to illegally demolish the suit schedule property and also trying to dispossess the plaintiffs from the suit schedule property. On the basis of the khatha standing in the name of Kodandapani, the defendants are attempting to transfer the suit schedule property to third parties. Hence, the plaintiffs have filed the suit for the relief of permanent injunction.
5. In pursuance of the suit, notices are issued to the defendants and they have appeared through their counsel and filed joint written statement. The defendants have denied the entire allegations made in the plaint. It is contended that the defendants are unaware about title of Sri V. Ramachandran and that plaintiff Nos.6 to 10 are his legal heirs. The case of the defendants is that, their father Sri A.P. Kodandapani has purchased the suit schedule property under the registered sale deed dated 18.10.1954. The parents of the defendants have expired, so the defendants being their children have inherited and succeeded to the suit schedule property. The defendants have also denied the payment of tax by the plaintiffs. It is contended that earlier defendants were in possession of the suit schedule property. But, by exercising force, the plaintiffs have gained the possession. So, the defendants cannot protect their possession. The defendants are the lawful owners of the suit schedule property. Hence, they made counter claim that they are entitled for recovery of possession from the plaintiffs.
6. It is the further case of the defendants that permissive or wrongful possession of the plaintiffs for longer period does not entitle them to confirm possession over the suit schedule property. The plaintiffs are bound to deliver vacant possession of the suit schedule property to the defendants, who are original owners along with damages of Rs.1,000/- per day from the date of the suit. The plaintiffs are trespassers and are in wrongful possession of the suit schedule property. H
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