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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 28th DAY OF MARCH 2013
BEFORE
THE HON’BLE MR.JUSTICE K.N.KESHAVANARAYANA
R.S.A. No.5128/2013 [DEC/INJ]
BETWEEN:
1. KAMALABAI S/O RAMBHAU AJANKAR
AGE:82 YEARS OCC: HOUSEHOLD,R/O. 764/15, BHAGYA NAGAR,
ANGOL, BELGAUM-590 006.
2. PRAMOD S/O RAMBHAU AJANKARAGE:53 YEARS OCC: BUSINESS,
R/O. 764/15, BHAGYA NAGAR,ANGOL, BELGAUM-590 006.
3. SANJAY S/O RAMBHAU AJANKARAGE:49 YEARS OCC: BUSINESS,
R/O. 764/15, BHAGYA NAGAR,ANGOL, BELGAUM-590 006.
4. GAJANAN S/O RAMBHAU AJANKAR
AGE:60 YEARS OCC: BUSINESS,R/O SAWANT BUILDING
OPP.SANT MEERA HIGH SCHOOLBELGAUM-590 006.
5. RAVI S/O RAMBHAU AJANKAR
AGE:58 YEARS OCC: BUSINESS,R/O.4752, CHAVAT GALLI,
BELGAUM-590 001.
6. VRUNDA W/O. MADANSINGH THAKUR
AGE:59 YEARS, OCC: HOUSEHOLD,
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R/O. H.NO.12, SUBHASH GALLI,I CROSS, GANDHI NAGAR,
BELGAUM-590 016.
7. BHARATI W/O. SHRIKANT PATKAR,AGE:55 YEARS OCC: HOUSEHOLD
R/O. H.NO.TG-5/A, AT ALORA,TALUK CHIPLUN, DIST:SINDHUDURG-415 603.
8. MANGAL D/O. RAMBHAU AJANKAR
AGE:50 YEARS, OCC: HOUSEHOLDR/O. 764/15, BHAGYA NAGAR,
ANGOL, BELGAUM-590 006.... APPELLANTS
(By Sri. SHRIKANT.R.SATTIGERI &
VISHWANATH V.BADIGER ADVS.)
AND:
SADANAND S/O. NAGESH REVANKARAGE:70 YEARS, OCC:BUSINESS,
R/O. PLOT Nos.9 & 10,VIVEKANAND NAGAR, CONGRESS ROAD,
TILAKWADI, BELGAUM-590 006.... RESPONDENT
THIS RSA IS FILED U/S.100 OF CPC., AGAINST THE
JUDGEMENT & DECREE DTD:19.01.2013 PASSED IN
R.A.NO.152/2007 ON THE FILE OF THE ADDITIONAL
DISTRICT & SESSIONS JUDGE & PRESIDING OFFICER
FAST TRACK COURT - III & MACT BELGAUM, ALLOWING
THE APPEAL, FILED AGAINST THE JUDGMENT
DTD:29.11.2003 AND THE DECREE PASSED IN
O.S.NO.865/1995 ON THE FILE OF THE II ADDL. CIVIL
JUDGE (JR.DIVISION) BELGAUM, DISMISSING THE SUIT
FILED FOR DECLARATION AND POSSESSION.
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THIS APPEAL COMING ON FOR ADMISSION, THISDAY, THE COURT DELIVERED THE FOLLOWING:-
J U D G M E N T
This appeal by the legal representatives of
the original defendant is directed against the
judgment of the lower appellate court allowing the
appeal and decreeing the suit of the
respondent/plaintiff in reversal of the judgment
and decree of the trial court dismissing the suit
filed by the respondent/plaintiff for declaration of
title and relief of possession.
2. The respondent/plaintiff filed the suit for
relief of declaration that he is the owner of the
suit schedule property having acquired the title
pursuant to the sale deed dated 24.01.1984 and
for further declaration that the sale deed dated
10.04.1975 executed by Smt.Laxmibai R.Pawar in
favour of the defendant with respect to the suit
property is null and void and not binding on him
and for further relief of possession of the suit
schedule property from the defendant.
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3. The case of the plaintiff in brief was as
under:
Smt.Laxmibai W/o. Ramachandra Pawar was
the owner of the suit schedule property and she
entered into an agreement of sale with the
plaintiff on 17.02.1975 agreeing to sell the suit
schedule property for consideration of Rs.6,000/-
and subsequently received a sum of Rs.2,700/-
towards the part of sale consideration, but later
failed to execute the sale deed. Therefore, the
plantiff filed the suit in O.S. No.156/1975 against
the said Laxmibai for relief of specific performance
before the I Addl. Munsif, Belgaum. The said suit
came to be decreed on 17.04.1976 and Laxmibai
Pawar was directed to execute the sale deed in
respect of the suit schedule property. However,
said Laxmibai Pawar failed to obey the decree
passed by the trial court. Therefore, the plaintiff
initiated execution proceeding and through the
process of court, sale deed dated 24.01.1984
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came to be executed. Thus, he became the owner
of the suit schedule property. He also claimed
that possession of the suit schedule property was
delivered to him by the executing court and after
taking over the possession of the property, he had
stored some old scrap materials therein as he was
staying in a different place. However, about an
year later, he received the summons from the
Court in the suit filed by the original defendant in
O.S. No.364/1985, wherein the plaintiff therein
had alleged that he is in possession of the suit
schedule property and had sought for relief of
permanent injunction on the ground that he has
been in lawful possession of schedule property as
its absolute owner by virtue of sale deed dated
10.04.1975. The said suit O.S. No.364/1985 came
to be dismissed by the trial court, however, it was
reversed in appeal by the lower appellate court,
granting relief of injunction in favour of the
defendant herein restraining the plaintiff herein
from interfering with the peaceful possession and
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enjoyment of the property except under due
process of law. The plaintiff sought for relief of
possession on the ground that he being the owner
of the property is entitled for possession of the
same, from the defendant as the possession of the
property by defendant is illegal and unauthorised.
4. The original defendant appeared before
the trial court and filed written statement inter
alia contending that the original owner
Smt.Laxmibai Pawar had executed an agreement in
his favour in respect of the suit schedule property
on 16.07.1974 agreeing to sell the suit schedule
property for a consideration of Rs.5,000/- and
received a sum of Rs.1,300/- as part of the
consideration and once again, she by reiterating
the said agreement, executed another agreement
dated 19.01.1975. He further contended that
before getting the sale deed executed in his
favour, he also issued a public notice in the news
paper on 03.01.1975, indicating to the general
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public about the agreement entered into in his
favour and cautioned the general public not to
enter into any transaction with the said Laxmibai
in respect of the suit schedule property.
Thereafter, on 10.04.1975, Smt.Laxmibai executed
a sale deed in his favour in respect of the suit
schedule property. It was also his contention that
prior to the agreement, he was in possession of
the property as a tenant and from the date of
agreement he continued in possession as a
prospective purchaser and upon execution of the
sale deed his possession was as absolute owner.
He denied the case of the plaintiff about the
delivery of possession of the property through
process of court and contended that the purported
delivery of suit schedule property was only a
paper delivery. Hence, the defendant sought for
dismissal of suit.
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5. During the pendency of the suit, the
original defendant died. Therefore, his legal
representatives were brought on record.
6. On the basis of pleadings of parties,
several issues were framed by the trial court.
Both the parties led evidence.
7. The trial court on appreciation of oral and
documentary evidence dismissed the suit of the
plaintiff holding that the suit for declaration was
barred by time on the premise that in O.S.
No.364/1985, the original defendant herein as
plaintiff had set up rival title in respect of the suit
schedule property adverse to the interest of the
plaintiff and in that view of the matter, the
present plaintiff ought to have filed the suit for
declaration of title within three years from the
said date and since the suit was not filed within
that period, he is not entitled for the relief of
declaration and since, the plaintiff has failed to
prove his title to the property, he cannot be
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declared as owner of the property, as such, the
relief of possession also cannot be granted. The
trial court also opined that the sale in favour of
the original defendant was not hit by the
principles of l is pendens.
8. Aggrieved by the said judgment and
decree, the respondent/plaintiff filed the appeal in
R.A. No.152/2007 before the District Court at
Belgaum which was later transferred to Fast Track
Court-III. The lower appellate court on re-
appreciation of oral and documentary evidence, by
the judgment under appeal, held that the sale
deed in favour of the original defendant having
come into existence during the pendency of the
suit filed by the plaintiff for the relief of specific
performance, it is hit by l is pendens and that the
defendant is bound by the decree in O.S.
No.156/1975. Therefore, the lower appellate court
held that by virtue of the sale deed in his favour,
the plaintiff has become the owner of the property
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and since the suit was one for greater relief of
possession, based on title, even though the relief
of declaration was not sought within the period of
three years from the date of knowledge on the
part of the plaintiff about the adverse title put
forth by the defendant, the Court is empowered to
adjudicate the title of the parties and if the
plaintiff is found to be the rightful owner of the
property, he would be entitled for the relief of
possession, unless the right to get possession of
the property has extinguished for any other
reasons. The lower appellate court found that the
contention of the defendant that he has perfected
his title to the property by adverse possession
cannot be countenanced for the reason that even
according to him, he initially entered into
possession of the property as a tenant and later,
from the date of alleged agreement, he continued
his possession was that of a prospective buyer and
from the date of sale deed in his favour, his
possession is that of an owner. The lower
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appellate court also noticed that the defendant has
not established that his possession of the suit
schedule property was adverse to the interest of
the plaintiff. The lower appellate court also
noticed that having regard to the specific defence
of the defendant, he is not entitled to put forth
the plea of adverse possession. In that view of
the matter, the lower appellate court allowed the
appeal, set aside the judgment and decree of the
trial court and in reversal of the same, decreed
the suit by declaring the plaintiff as the owner of
the property and directed the appellant/defendant
to deliver the possession of the property to the
plaintiff. Aggrieved by the said judgment and
decree the legal representatives of the defendant
are in appeal before this Court.
9. Having heard the learned counsel for the
appellants and on perusal of the judgment of the
courts below, I am of the considered opinion that
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no question of law much less substantial question
of law arises for consideration in this appeal.
10. Admittedly, even according to the
appellants, the agreement in favour of the original
defendant was on 16.07.1974 and the sale deed in
his favour was executed on 10.04.1975, whereas
according to the plaintiff, the agreement in his
favour was on 17.02.1975 and he filed the suit in
O.S. No.156/1975 for specific performance on
24.03.1975. Thus, from the above, it is clear that
the sale deed executed in favour of the defendant
on 10.04.1975 was subsequent to the filing of
suit. In other words, the said sale deed came into
existence during the pendency of the suit in O.S.
No.156/1975. Therefore, as rightly held by the
lower appellate Court the principles of lis pendens
would certainly apply to the said transaction. The
sale deed per se may not be void. However,
Further, the purchaser under the said sale deed is
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bound by the decree passed by the Court in the
pending lis.
11. As noticed supra, the suit filed by the
plaintiff for specific performance in O.S.
No.156/1975 against Smt.Laxmibai came to be
decreed on 17.04.1976 and thereafter, in the year
1980, the plaintiff filed execution petition
No.191/1980 and in that proceedings, the Court
Commissioner appointed executed the sale deed
on 24.01.1984. Thus, the original defendant being
bound by the decree passed in O.S. No.156/1975,
the right, title and interest which he derived under
the sale deed dated 10.04.1975, has to yield to
the title derived by the plaintiff pursuant to the
decree passed by the court.
12. It is necessary to note here that in the
year 1985, the original defendant filed the suit in
O.S. No.364/1985 for the relief of permanent
injunction against the plaintiff herein. In the said
suit, the original defendant put forth the
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contention that he is in possession of the property
as absolute owner having acquired the title under
the sale deed dated 10.04.1975. In the said suit,
the present plaintiff who was the defendant,
appeared before the trial court, filed his written
statement, setting out the agreement in his
favour, the suit filed by him for specific
performance, the suit having been decreed and
ultimately, he having obtained the sale deed
through the process of the Court. Thus, soon
after the present plaintiff as defendant in O.S.
No.364/1985 filed his written statement, the
original defendant no.1 herein, gained knowledge
of the decree obtained by the plaintiff herein in
O.S. No.156/1975 and the sale deed having come
into existence through the process of the Court.
In view of the fact that the sale deed in favour of
the original defendant had come into existence
during the pendency of the suit O.S. No.156/1975,
it was obligatory on the part of the original
defendant to have avoided the decree. However,
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for the reasons best known to him he did not take
any steps to avoid the said decree and the sale
deed executed in favour of the plaintiff through
the process of the Court. Having not taken any
steps to avoid the said decree of sale deed in
favour of the plaintiff, it was not open to the
original defendant herein or to his legal
representatives to contend that they have become
owners of the property. In this view of the
matter, the trial court is not justified in holding
that the sale in favour of the original defendant
was not hit by the principles of l is-pendens. The
trial court had completely ignored the statutory
provisions and also the fact that admittedly the
sale deed in favour of the original defendant had
come into existence subsequent to filing of the
suit in O.S. No.156/1975 and the said decree has
not been avoided by the original defendant.
13. The Trial Court erroneously came to the
conclusion that since the relief of declaration is
barred by time, the relief of possession cannot be
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granted. In a suit for declaration and possession
based on such title, the main relief is that of the
relief of possession. Therefore, relief of
declaration becomes ancillary to the main relief of
possession. In such an event, as held in catena of
decisions Article 65 of Limitation Act is applicable
and not Article 58 [See C. NATARAJAN Vs. ASHIM
BAI AND ANOTHER, (2007) 14 SCC 183]. In
SAROOP SINGH vs. BANTO AND OTHERS, [(2005)
8 SCC 330], it has been held that in terms of
Article 65 of Limitation Act, the starting point of
limitation does not commence from the date when
the right of ownership arises to the plaintiff but
commences from the date the defendant’s
possession becomes adverse. In S.M.KARIM vs.
MST BILRI SAKINA, [AIR 1964 SC 1254] and in
T.ANJANAPPA vs. SOMALINGAPPA [(2006)7 SC
570], it has been held that mere possession
however long does not necessarily mean that it is
adverse to the true owner. In the case on hand,
the suit for possession was not barred by law of
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l imitation, since the defendant has failed to prove
adverse possession. Lower Appellate Court in
Regular Appeal No.118/1990 filed against the
judgment and decree in Original Suit No.364/1985
had granted a limited relief of permanent
injunction in favour of the original defendant
herein for perpetual injunction restraining the
plaintiff herein from interfering with the peaceful
possession and enjoyment except in due process
of law. It is also to be noted that since the
plaintiff has proved his title to the property
pursuant to the sale deed executed through the
process of Court, he being the absolute owner of
the property, is entitled for possession, unless it is
established that his right to get possession has
been extinguished by any other mode. It is well
settled law that in a suit for possession of
immovable property based on title, the claim of
the true owner can be defeated only if the person
in possession pleads and proves that he has
perfected his title by adverse possession.
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14. As noticed supra, the original defendant
had set up plea of adverse possession. The Trial
Court did not go into that aspect seriously, in view
of the fact that, it had concluded that the suit for
declaration was barred by time and therefore, the
plaintiff was not entitled for possession.
Nevertheless, the Lower Appellate Court has
considered the same and has held that the original
defendant is not entitled for putting forth the plea
of adverse possession. The finding in this regard
recorded by the Lower Appellate Court is in
accordance with law. Even according to the
original defendant, his initial entry into the
possession of the property was as tenant under
the original owner Laxmi Bai. According to him,
from the date of the agreement on 16.07.1974 his
possession became that of a prospective buyer and
from the date of the sale deed i.e., 10.04.1975 his
possession was that of owner. At no point of time,
neither the original defendant nor his legal
representatives contended that the plaintiff herein
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is the owner of the property and that they are in
possession of the property adverse to the interest
of the plaintiff exercising the rights of ownership
exhibiting hostility. It is well settled law that a
person putting forth the plea of adverse
possession cannot approbate and reprobate. He
cannot put forth the contradictory or alternative
pleas. Having contended that he has been in
possession of the property as absolute owner
thereof by virtue of sale deed, he was estopped
from contending that he has perfected the title to
the property by adverse possession. In this
regard, it is apt to note the following principles
laid down by the apex Court in AMRENDRA PRATAP
SINGH vs. TEJ BAHADUR PRAJAPATI, [(2004) 10
SCC 65] under caption “What is adverse
possession?”
“Every possession is not, in law,
adverse possession. Under Art icle 65 of the
Limitation Act, 1963, a suit for possession of
immovable property or any interest therein
based on tit le can be inst ituted within a
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period of 12 years calculated from the date
when the possession of the defendant
becomes adverse to the plaintif f . By virtue of
Section 27 of the Limitat ion Act, at the
determination of the period l imited by the Act
to any person for inst itut ing a suit for
possession of any property, his right to such
property stands extinguished. The process of
acquisit ion of t it le by adverse possession
springs into act ion essential ly by default or
inaction of the owner. A person, though
having no right to enter into possession of
the property of someone else, does so and
continues in possession sett ing up ti t le in
himself and adversely to the tit le of the
owner, commences prescribing tit le into
himself and such prescript ion having
continued for a period of 12 years, he
acquires ti t le not on his own but on account
of the default or inaction on part of the real
owner, which stretched over a period of 12
years results into ext inguishing of the latter's
tit le. It is that extinguished t it le of the real
owner which comes to vest in the wrongdoer.
The law does not intend to confer any
premium on the wrong doing of a person in
wrongful possession; it pronounces the
penalty of extinction of t it le on the person
who though entit led to assert his r ight and
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remove the wrong doer and re-enter into
possession, has defaulted and remained
inactive for a period of 12 years, which the
law considers reasonable for attracting the
said penalty. Inaction for a period of 12
years is treated by the Doctrine of Adverse
Possession as evidence of the loss of desire
on the part of the rightful owner to assert his
ownership and reclaim possession.”
15. In view of the above discussions, the
Lower Appellate Court is justified in law in holding
that the plea of adverse possession cannot be
countenanced.
16. Having regard to the facts and
circumstances of the case, the Lower Appellate
Court is justified in reversing the judgment of the
trial Court and consequently declaring the plaintiff
as the owner of the property and also directing the
delivery of possession of the same to the plaintiff.
In this view of the matter, I find no merit in this
appeal. Accordingly, the appeal is dismissed.
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17. At this stage, the learned counsel for the
appellants sought for grant of some time to the
appellants to vacate and deliver possession of the
property on the ground that the time of 30 days
granted by the Lower Appellate Court has expired
and the respondent – plaintiff is likely to take out
execution. The Lower Appellate Court by
judgment dated 19.01.2013 granted 30 days time
to the appellants to vacate and hand over the
vacant possession of the suit schedule property to
the plaintiff. The time granted by the Lower
Appellate Court has since expired and in view of
the fact that the appellants have been in
possession of the property since from 1974, it is
just and proper to grant sometime to the
appellants to find an alternative premise and
vacate the suit schedule property.
18. Having regard to the facts and
circumstances of the case, interest of justice
would be served by granting three months time
from today to the appellants to vacate and hand