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IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH
P.G.M. PATIL, J.
The Arya Idiga Sangha, Represented by its Secretary - Appellant
Versus
Vijaykumar S/o Balayya - Respondent
RSA No. 200378 of 2017
Decided On : 24-04-2019
L.A. Act - Section 4 and 6 - Registration Act - Section 17 – Civil Procedure Code - Order 20 - Rule 12 - Acquisition of land - Possession of suit property - Whether plaintiff proves that he is owner of suit property - Whether plaintiff proves that defendant has encroached upon suit property - Whether defendant proves that it has become owner of suit property by virtue of gift deed executed by father of plaintiff and one - Whether defendant proves that it has perfected its title to schedule property by way of adverse possession - Whether valuation of suit and Court fee paid thereon is sufficient - Whether suit is in time - Whether suit is bad for non-joinder of necessary parties their L.Rs of deceased - Whether plaintiff is entitled for reliefs claimed - Plaintiff filed suit before trial Court seeking a decree for relief of declaration possession mandatory injunction and manse profits and injunction in respect of suit schedule property - It is case of plaintiff that suit schedule property was purchased by his father under registered sale deed in his name as he was minor - Original sale deed is lost and therefore certified copy of sale deed is produced - He further contended that defendant claiming as a society as nothing to do with possession of suit property - Plaintiff is residing for his business purpose taking undue advantage of same defendant has encroached within suit property dug pits for construction of building and in some places he has constructed building up to basement level without permission from City Corporation - Plaintiff being owner of suit property defendant has no right title and interest over said property – Held, Court have heard learned counsel appearing for parties - Both learned counsel having addressed arguments on admission of appeal it is necessary for this Court to consider material on record and come to conclusion as to whether any substantial question of law arise in appeal which has to be heard and decided - There is no dispute that father of plaintiff purchased suit schedule property under registered sale deed in name of plaintiff who was then a minor and certified copy of sale deed was produced and marked at Ex.P2 without any objections - It is also made out that father of plaintiff had two wives and both wives and their sons had filed before for partition of joint family properties including suit schedule property and said suit came to be decreed as per Ex.P4 and that D schedule property was allotted to share of present plaintiff which is subject matter in present suit - In fact Ex.P4 decree passed was produced as additional document before first appellate Court and was marked on tendering evidence - It is also not disputed that plaintiff’s father died and he his body was buried in suit schedule property - Said suit also ended in compromise - It is also not disputed that revenue records RTCs in respect of suit property are standing in name of plaintiff till date as per Ex.P3 to Ex.P10 - It is again not disputed died and her body was buried in suit schedule property – Therefore all these admitted facts goes to show that defendant has not been able to prove that he is in possession of suit property as absolute owner by perfecting title by adverse possession nor he has been able to prove that he has acquired suit schedule property by virtue of alleged gift deed executed by plaintiff’s father - Admittedly no gift deed was produced by defendant before Court - It is also seen that plaintiff had filed application U/o 41 Rule 71 of CPC to produce additional evidence which was allowed and same was challenged by defendant in RSA - Said second appeal came to be allowed on ground that lower appellate Court has not followed procedure contemplated u/o 41 rule 28 and 29 of CPC and therefore matter was remanded to first appellate Court again PW1 was examined and additional documents are marked - Defendant at 1st instance claims to have acquired title to suit schedule property under gift deed which does not exist - Unless a gift deed is duly registered under Section 17 of Registration Act - Done will not get any right over property - Defendant having failed to establish his right title and interest by virtue of gift deed has also pleaded that he has perfected title over suit schedule property by virtue of adverse possession – Appeal dismissed
JUDGMENT :
The defendant being aggrieved by the judgment and decree dated 10.10.2017 passed in R.A.No.55/2015 on the file of I Addl. District Judge, Kalaburagi who reversed the judgment and decree dated 13.08.2015 passed in O.S.No.123/2004 on the file of II Addl. Civil Judge (Sr.Dn.) Court, Kalaburagi has filed this appeal.
2. The parties are referred to with their rank before the trial court.
3. The plaintiff filed the suit before the trial Court seeking a decree for the relief of declaration, possession, mandatory injunction and mense profits and injunction in respect of the suit schedule property. It is the case of the plaintiff that the suit schedule property was purchased by his father under the registered sale deed dated 18.10.1965 in his name as he was minor. The original sale deed is lost and therefore certified copy of sale deed is produced. He further contended that the defendant claiming as a society as nothing to do with the possession of the suit property. The plaintiff is residing in Bengaluru for his business purpose, taking undue advantage of the same, the defendant has encroached within the suit property, dug the pits for construction of building and in some places he has constructed building upto basement level without permission from the City Corporation. The plaintiff being the owner of the suit property, defendant has no right title and interest over the said property. Therefore, plaintiff asked the defendant to remove the illegal construction over the suit property as the same has deprived his legal rights. However, defendant failed to remove the same. Therefore, the plaintiff was constrained to file the said suit.
4. In response to the suit summons, the defendant appeared through his counsel and filed written statement. He disputed the correctness of the description of the suit property. However, he admitted that 2 acres of land has been purchased in Sy.No.81 and 82 on 18.10.1965 by the father of the plaintiff out of his own income. The sale deed is nominally taken in the name of the plaintiff. Thus, the plaintiff is only benami. The plaintiff never came in possession of the suit property. It is denied that the plaintiff’s name is entered in the ROR and the entry in the ROR is not a document of title. The defendant denied that he has no right title or interest in the suit property and that he has put up construction illegally. The defendant has further contended that the father of the plaintiff was President of defendant Sangha so on 22.04.1966, plaintiff’s father has gifted suit property to the defendant Sangha in the presence of Kamaraj Nadar and Sri. S. Nijalingappa and the defendant Sangha has installed the foundation stone of function hall building on 24.06.1966, the gift deed is not traced out. The defendant has further stated that the adjoining land was purchased by one Mallappa Shindhe and he also gifted the portion of his properties to the defendant Sangha. Therefore, the defendant Sangha is owner and in possession of entire survey No.81 and 82 of Badepur village. The CMC, Gulbarga had issued notification under Section 4 and 6 of the L.A.Act for acquisition of the land from the defendant. But the defendant through the father of the plaintiff got dropped the acquisition proceedings. The defendant has applied permission for construction of hostel building and accordingly hostel building was constructed and compound wall was also constructed. All these facts are within the knowledge of the plaintiff for long time. The plaintiff’s father died living behind his sons and daughters other than the plaintiff. But none of them have claimed any right over the suit property. Therefore, under the gift deed executed by the father of the plaintiff, the defendant Sangha has become owner and in possession of the suit property and as such the plaintiff is not owner and not in possession and there is no cause of action for the suit. It is further contended that even otherwise, the defendant has perfected its title ove
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