IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 6th DAY OF JUNE, 2011. Before THE HON’BLE MR.JUSTICE K.GOVINDARAJULU RFA No.333/2002 (DEC) C/W RFA NO.280/2002 IN RFA No.333/2002 (DEC) BETWEEN: SOLLAPPA YAM NAPPA MAHAGUNDAPPANAWAR MAJOR AGRIL R/O KOMATAGI TAL HUNAGUND DIST BAGALKOT APPELLANTS (BY SRI. V P KULKARNI, ADV.) AND 1. HUSANAVVA W/0 NABISAB TAHSILDAR MAJOR HOUSEHOLD WORK R/O KAMATAGI TAL HUNAGUND . GAIBUSSAB NABISAB TAHSILDAR MAJOR COOLIE R/O KAMATAGI TAL HUNG UND 3. HUSAINSAB NABISAB TAHSILDAR MAJOR COOLI R/O KAIvIATAGI TQ HUNAGUND DIST BAGALKOT RESPONDENTS (BY SRJ.M.B.KANAVI FOR R2 & R3 Ri - ABATED,) THIS RFA IS FILED U/S. 96 OF CPC AGAINST THE JUDGEMENT & DECREE DATED: 18.2.1999 IN O.S.NO.239/97 PASSED BY THE C.J.(SR.DN). BAGALKOT, DISMISSING THE SUIT OF THE PLAINTIFFS/RESPONDENTS FOR DECLARATION, INJUNCTION, SEPARATE POSSESSION & MESNE PROFITS. IN RFA NO.280/2002 BETWEEN 1. HUSANAVVA W/O NABISAB TAHASILDAR R/O KAMATAGI SINCE DECEASED BY L.RS 1(A) HUSSAINBI, W/O NABILAL DEFEDAR MAJOR, OCC:HOUSEHOLD R/O LOKAPUR, MUDHOL 1(B) JUBEDA BEGAUM W/O SULTANSAB VARCHAGOL MAJOR, HOUSEHOLD R/O KERUR, BADAMI 1(C) RAJIABEGUM W/O MURTH ZSAB LOKAMPALLI MAJOR, OCC:HOUSEHOLD R/O ILKAL 1(D) MAMTAZ BEGUM W/O NABISAB MULLA MAJOR, OCC:HOUSEHOLD, R/O SIRUR 2. GAIBUSAB NABISAB TAHSILDAR AGE:42 YRS, OCC:COOLI R/O KAMATAGI 3. HUSAINSAB NABISAB TAHSILDAR AGE:33 YRS, OCC:COOLIE R/O KAAMATAGI ... APPELLANTS (BY SRI. M B KANAVI ADV. FOR A2 & A3, JAGADISH PATIL, K.ANAND) AND SOLLAPPA YAMANAPPA MAHAGONDAPPANAVAR MAJOR, OCC:AGRL R/O KAMATAGI VILLAGE. BAGALKOT ... RESPONDENT (BY SRI. V.P.KULKARNI, ADV.) THIS RFA IS FILED U/S 96 OF CPC AGAINST THE JUDGEMENT AND DECREE DATED 18.02.1999 PASSED IN O.S. NO. 239/97 ON THE FILE OF THE PRL. CIVIL JUDGE (SR DN), BAGALKOT, DISMISSING THE SUIT FOR DECLARTION, INJUNCTION, SEPARATE POSSESSION AND MESNE PROFITS. These RFAs coming on for final hearing this day, the Court delivered the following: JUDGMENT Defendant in OS No.239/97, on the file of Pri. Civil Judge (Sr.Dn), Bagalkot, is the appellant in RFA No.333/2002. 2. Plaintiffs in OS No.239/1997 on the file of the Prl. Civil Judge (Sr. Dn.) Bagalkot are the appellants in RFA No.280/2002. -4- 3. Parties will be referred according to their status found in the Court below for convenience. 4. The suit is filed by the plaintiffs seeking for (a) declaration of the title that they are the owners of the plaint schedule properties (b) separate possession from the defendant (c) for mesne profits from the date of suit till the delivery of the possession and (d) for costs and such other reliefs. 5. The case of the plaintiffs is in regard to property in R.S.No.47/3 of Kamatagi village, the plaintiffs claim title to the plaint schedule properties contending that it belong to Yakusab Hussainsab Tahsildar. It is contended that Yakusab Hussainsab Tahsildar is the younger brother of Hussainsab Tahsildar. Hussainsab Tahsildar is the grandfather of plaintiffs 2 & 3, father- in-law of plaintiff No.1. Yakusab Hussainsab Tahsildar had no issues, died in the year 1982, leaving behind the plaintiffs as his nearest heirs. 6. In regard to the present suit, the case of the plaintiffs is that the defendant has contended that Yakusab Hussainsab Tahsildar has gifted the land in his favour and that it was a oral gift in collusion with the village accountant of Kamatagi, proceedings in ME.1463 is recorded. The said proceedings is bad in law. Refer to the earlier suit filed in OS No.20/2009 by the defendant, for declaration of title and for consequential injunction. The suit of the defendant in OS No.20/ 1990 being decreed partly, only with regard to permanent injunction. The defendant carried the said subject in RFA No.17/ 1993 on the file of the District Court, Bijapur. The District Court, Bijapur dismissed the claim of the defendant for declaration of title, by an order dated 30.08. 1997. So pray for decreeing the suit. 7. Defendant has entered appearance. Filed the written statement. The defendant that the land belong to Yakusab Hussainsab Tasildar. Also admits that he had no issues. In regard to the relationship claimed by the plaintiffs, pleads that he is not aware of the same. The plaintiffs are called upon to prove the same. It is also contended that the plaintiffs have no right, title or interest over the property. Supports the claim in regard to the title by the defendant in pursuance of gift. So also seek for declaration that he is declared as the owner of the property by adverse possession. The necessary pleading in regard to adverse -6- possession stated in para 4 of the written statement reads as under: “4. The defendant has been in possession and enjoyment of the suit land right from 1959 to this day openly, peaciably, uninterruptedly for a period more than 12 years adverse to the alleged interest of the plaintiff over the suit land. Thus he has perfected his title by adverse possession. The plaintiff could have made a counter claim in previous suit itself, but they have not chosen to do so. When the judgment was pronounced in O.S.20/90, the plaintiff also should have preferred an appeal or should have filed another suit within three years from the date of the said judgment. Therefore, the present suit filed after a gap of about four years is clearly time barred. The plaintiff who have not made any counter claim in the previous suit, nor have preferred any appeal are estopped from claiming any right over the suit land. The suit of the plaintiff is hit by the doctrine of estoppel and it liable to be dismissed on this ground. 8. After framing of the foilowing issues, the learned trial Judge has pennitted the parties to lead evidence. PW-l is examined. Exs.P- 1 to 9 are marked. In response DWs- 1 and 2 are examined Exs.D1 to 7 are marked. The learned trial Judge has dismissed the suit while answering the issues framed. Issues: I. Whether the plaintiffs prove that they are the nearest heirs of the deceased Yakubsab? -7- 2. Whether the plaintiffs prove that they are the owners of the suit land? 3. Whether the plaintiffs prove that they are entitled for the declaration and possession of the suit land as prayed for? 4. Whether the defendant proves that the suit is barred by limitation? 5. Whether the defendant proves that he has perfected his title to the suit properties by way of adverse possession? 6. What order or decree? Answers to the above issues are as follows: 1. Negative 2. Negative 3. Negative 4. Negative 5. Negative 6. As per final order 9. The learned advocate for the defendant contends that the defendant has positively contended that he is in possession of the property for more than 12 years. So, the claim of the defendant by adverse possession has to be answered in favour of the defendant. The very fact that the earlier suit filed by the defendant is decreed, it being not challenged, it will prove that the defendant is in possession of the property so the approach of the learned Civil a— -8- Judge (Sr.Dn) in dismissing the claim of the defendant for declaration of title on the basis of adverse possession is not opt. The learned advocate also reads and takes me through the evidence and documents marked. 10. Perused the records, evidence recorded. The point that arise for consideration by this Court is as under: “Whether the defendant has proved the title to the plaint schedule property in RS No. 47/3 at Kamatagi village by adverse possession?” 11. The claim of the plaintiffs is that the property in RS No.47/3 of Kamatagi village belongs to Yakubsab Hussainsab Tahsildar. This title claimed by the plaintiffs is not at all disputed by the defendants. To add, defendant also claim title through the very same person. 12. It is the case of the plaintiffs that as Yakubsab Hussainsab Tahsildar had no LRs, plaintiffs are the nearest relatives of/successors of Yakubsab Hussainsab Tahsildar. This relationship pleaded by the plaintiffs is denied by the defendant. While denying the case of the plaintiffs in regard to the blood -9- relationship that Yakubsab Hussainsab Tahsildar, defendant contend that he has acquired title by adverse possession. It is to be noted, though his claim for declaration of title in earlier suit in OS No.20/ 1990 being denied by the competent court, in this second round, the defendant has contended that he has claimed title by adverse possession. So, the court has to give a finding in regard to the claim of the defendant by adverse possession. 13. The law regarding adverse possession and the period of limitation that is attracted can be better referred to, by referring to the judgment of the Apex Court in P.T. MUNICHIKKANNA REDDY & OTHERS VS. REVAMMA AND OTHERS in Appeal (Civil) 7062/2000 decided on 24.4.2007. The Apex Court has held that the person who seeks adverse possession has to prove the following elements: ‘Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his A- - I U - possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since, he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.” 14. The Hon’ble Apex Court has also in the course of the very same judgment has referred to the law of limitation and held as follows: “The law in this behalf has undergone a change. In terms of Articles 142 and 144 of the Limitation Act, 1908, the burden of proof was on the plaintiff to show within 12 years from the date of institution of the suit that he had title and possession of the land, whereas in terms of Articles 64 and 65 of the limitation Act, 1963, the legal position has underwent complete change insofar as the onus is concerned; once a party proves its title, the onus of proof would be on the other party to prove claims of title by adverse possession. The ingredients of adverse possession have succinctly been stated by this Court in S.M. Karim Vs. Mst. Bibi Sakina (AIR 1964 SC 1254) in the following terms: - Ii - Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse, so that the starting point of limitation against the party affected can be found” 15. Portion of para 4 of the written statement quoted supra, do not specify against whom the defendant claims title by adverse possession. So, the claim of the defendant for adverse possession is liable to be rejected. 16. Learned advocate Sri P.P. Kulkarni vehemently contend that the defendant being in continuous possession from the date of the earlier suit file in the year 1990, it is adverse to the claim of the real owner. The period of limitation is three years. So, the claim of the defendant has to be decreed, notwithstanding the finding in th earlier suit and appeal. 17. The submission of the learned advocate for the defendant cannot be accepted as the ingredients to claim adverse possession are not forthcoming. So, the submission of the learned advocate for the defendant is rejected. - 12- 18. The material findings would probabilise that the claim of the plaintiffs is that the property belong to Yakubsab Hussainsab Tahsildar is proved. The further case of the plaintiffs is that Yakubsab Hussainsab Tahsildar do not had any other LRs, is also established. So, the plaintiff succeed in the suit. The defendant fails in establishing adverse possession. So, the following order is passed: The order passed b the Pri. Civil Judge (Sr. Dn.) Bagalkot, in OS No.239/1997 is set aside. The suit is decreed as prayed for including mesne profits. Plaintiff shall file an application for an enquiry in regard to the mesne profits in accordance with law. RFA No.333/2002 is dismissed and RFA No.280/2002 is allowed. 3 tJDGE P1*