(Prayer: This Regular Second Appeal is filed under Section 100 of the Code of Civil Procedure against the Judgment and Decree dated 5.10.04 passed in R.A.No.13 of 2002 on the file of the Presiding Officer, Fast Track Court, Haveri, dismissing the appeal and confirming the Judgment and Decree dated 11.4.2002 passed in OS No.79 of 96 on the file of the Civil Judge (Sr. Dn) and Orl. JMFC, Ranebennur.)
1. The case of the plaintiff is that the suit property is the land measuring 6 acres 2 guntas more fully described in the schedule to the plaint. The owner of the land Sri Rudrappa took out the land for sale to meet his family necessity and to repay the hand loans. Therefore, he entered into an agreement with the plaintiff agreeing to sell the suit land for Rs.20,700/- and received Rs.8,700/- as earnest money and executed an agreement of sale on 12.06.1972. The possession was handed over on the same day agreeing to execute the sale deed after the receipt of the balance amount as per the agreement. The plaintiff is in possession of the suit schedule property since twelve years under the agreement of sale. Rudrappa received the balance amount of Rs.12,000/- on 13.08.1972 and endorsed the same on the agreement of sale. Rudrappa died in 1984. The defendants are his legal representatives. Since there was a ban of registration of sale deeds, the plaintiff could not get the sale deed executed. After withdrawal of the ban, he approached Rudrappa to execute the sale deed. He went on postponing on one ground or the other. On 13.08.1973, Rudrappa received Rs.12,000/- and Rudrappa and Nagappa signed on the document and hence only the sale deed had to be executed. In spite of non-registration of the sale deed, the plaintiff is cultivating the suit land. Taking advantage of the continuation of the name of Rudrappa in the record of rights, he filed a suit before the Munsiff Court, Hirekerur in O.S. No.108 of 1981 and obtained an injunction against the plaintiff herein. Aggrieved by the same, Miscellaneous Appeal No.10 of 1981 was filed which was disposed of holding that the plaintiff is in possession of the suit property. Thereafter, the suit was dismissed for default. The same was not restored. Consequently, Rudrappa died. Ever since the date of agreement, the plaintiff is in possession of the same. Therefore, he has perfected his title by adverse possession. Hence, he filed the instant suit seeking for declaration of title based on adverse possession and for permanent injunction.
2. On service of summons, defendants entered appearance and denied the plaint averments. That the suit is not maintainable. That Rudrappa neither for his family and to repay the loan took out the suit property for sale nor that he has entered into an agreement with the plaintiff. The agreement was denied. That the defendants are in continuous possession of the property. Record of rights stand in their names. The suit filed by the defendants earlier is of no consequence.
3. Based on the pleadings, the trial Court framed the following issues:
1. Whether plaintiff proves that he is in possession and peaceful enjoyment of the suit schedule property since 30.06.1984 continuously without any interruption to the knowledge of true owner and become the owner of the suit property by adverse possession?
2. Whether plaintiff is entitled for injunction?
3. What order?
4. 4 witnesses were examined on behalf of the plaintiff and 8 documents were marked. 3 witnesses were examined on behalf of the defendants and 10 documents were marked. The first issue was held in the negative. Second issue was held in the affirmative. The suit of the plaintiff was decreed in part. The plea of the plaintiff for declaration of title on the basis of the adverse possession was rejected. Injunction was granted restraining the defendants not to interfere with the peaceful possession of the suit schedule property of the plaintiff. The defendants filed R.A. No.13 of 2002 seeking dismissal of the suit and the plaintiff filed R.A. No.17 of 2002 seeking complete decreetal of the suit. Both the appeals were dismissed. Aggrieved by the same, defendants have filed this appeal.
5. By the order dated 14.11.2005, the appeal was admitted to consider the following substantial question of law:
Whether the Courts below having held that the plaintiff has failed to prove his title to the suit property, was justified in issuing an order of temporary injunction on the basis of the document Ex.P-7 which contains tampering by way of insertions regarding handing over of possession, as admitted by PW.3 in his cross-examination?
6. Heard learned counsels.
7. Learned counsels submit that the substantial question of law as framed at the stage of admission requires to be reframed. They have accordingly addressed arguments on the same.
8. On hearing the learned counsel, the substantial question of law is reframed as follows:
Whether both the Courts below have misread the material and evidence on record in holding that the plaintiff has proved his possession over the suit schedule property and thereby decreeing the suit to the said effect?
9. Sri Sachin S. Magadum, learned counsel for the appellants/defendants contends that both the Courts below committed an error in holding that the plaintiff has proved his possession over the suit schedule property. That when the defendants herein had filed an earlier suit against the plaintiff and sought for injunction that itself is a clear indication to show that the defendants were in possession of the suit schedule property. The subsequent dismissal of the suit for non-prosecution cannot be held adverse to the interest of the defendants. It is further contended that in the agreement to sell-Ex.P-7, there is an overwriting in the said document to the effect that possession has been handed over on that day. This crucial aspect of the matter has not been considered by the trial Court. It is further contended that the suit for declaration and injunction cannot be granted. That the primary relief of plaintiff seeking declaration of title based on adverse possession has been rejected, therefore, he sought for complete dismissal of the suit.
10. On the other hand, Sri P.G. Mogali, learned counsel for the respondent/plaintiff defends the impugned order. He contends that the plea of adverse possession was negated by both the courts below. No appeal has been filed against the said finding. However, so far as injunction is concerned, the possession of the plaintiff is established in terms of Ex.P-7. Therefore, nothing more needs to be proved by the plaintiff. With the dismissal of the suit for default, by the defendants, suit for injunction is a clear indication that the defendants were never ever in the possession of the suit schedule property. Hence, he pleads that the appeal be dismissed.
11. Heard learned counsels and examined the records.
12. The first issue with regard to the title of the plaintiff based on adverse possession would not arise for consideration since the issue has been held against the plaintiff which has been accepted. There is no second appeal against the said finding. Second issue as to whether the plaintiff is entitled for injunction. In considering the said issue, the trial Court relied heavily on Ex.P-7, which is the agreement of sale dated 12.06.1972. I have considered the said exhibit. There is a clear narration therein to the effect that the possession of the suit schedule property is handed over to the plaintiff as on the date of the agreement namely 12.06.1972. Therefore, in terms of Ex.P-7, the plaintiff is in entire possession over the suit schedule property. His possession over the suit schedule property is continued and has remained undisturbed even as on date. Therefore, the finding of the trial Court with regard to the possession of the plaintiff based on Ex.P-7 is just and appropriate and no interference is called for.
13. Grant of injunction was primarily based on Ex.P-7 namely the agreement of sale. Therefore, the contention that there is absence of any material to prove the possession of the plaintiff over the suit schedule property is incorrect. The contention of the plaintiff that the tax paid receipts stands in the name of the defendants becomes inconsequential to Ex.P-7. Ex.P-7 is a document executed by the father of the original defendants in favour of the plaintiff narrating the handing over of the possession to him. Therefore, to contend to the contrary would be opposed to the records of the case. Consequently, the substantial question of law is answered by holding that the both the Courts below have not misread the evidence on record, while holding that the plaintiff has proved his possession over the suit schedule property and thereby decreeing the suit to the said effect.
14. Notwithstanding answering substantial question of law it was contended by the appellants counsel that when the primary prayer of the plaintiff seeking for a declaration of title based on adverse possession has been rejected, the plea for injunction cannot be granted.
15. I am unable to accept such a contention. Prayer sought for by the plaintiff are distinct and separate. The relief for declaration of title based on adverse possession is different from the prayer seeking for injunction. The prayer for adverse possession is based on uninterrupted possession from the relevant date. That has been negated by the trial court which means the plaintiff would not have any title to the suit schedule property. The relief of injunction is based purely and simply on Ex.P-7. In terms of Ex.P-7, the plaintiff has been put in possession. Possession is not being claimed as an uninterrupted possession but based on the recitals of Ex.P-7. Therefore, the contention that the second prayer cannot be considered when the first prayer has been rejected is negated. It is needless to state that notwithstanding the decreetal of the suit for injunction, the right of the defendants herein to seek possession of the suit schedule property in accordance with law would necessarily go undisturbed.
Under these circumstances, having answered the substantial question of law, the appeal is dismissed. The judgment and decree dated 05.10.2004 passed by the Presiding Officer, Fast Track Court, Haveri, in Regular Appeal No.13 of 2002 confirming the judgment and decree dated 11.04.2002 passed by the learned Civil Judge (Senior Division) and Principal JMFC, Ranebennur in O.S. NO.79 of 1996 are affirmed. No costs.