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Mahadev Malhar Lad Vs. Mohamadrasul Hatelsaheb Shaik - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. 331 of 1966
Judge
Reported inAIR1971Kant139; AIR1971Mys139; (1970)2MysLJ598
ActsMysore Civil Courts Act, 1964 - Sections 29(2); Mysore Civil Courts (Amendment) Act, 1965; Limitation Act, 1963 - Schedule - Articles 64 and 65
AppellantMahadev Malhar Lad
RespondentMohamadrasul Hatelsaheb Shaik
Appellant AdvocateN.A. Mandgi, Adv.
Respondent AdvocateV.S. Gunjal, Adv.
DispositionAppeal dismissed
Excerpt:
.....judgment and decree of the lower appellate court. judgment and decree of both the courts below are set aside. - 187 of 1966 (mys) was disposed of section 29 (2) (ee) clearly states that the appeal filed before the district judge as in this case does not stand transferred to the file of the civil judge. in a case where the land is adjoining the house of the defendants and the plaintiff is not a resident of that locality where the land is situate little acts of possession cannot be effectively taken notice of at once by the plaintiff against whose interest they were exercised......courts act, the district judge cannot hear the appeals from the decrees and orders passed by the civil judge, junior division. for this proposition, reliance is placed on the decision of this court in r. s. a. no. 187 of 1966 (mys) wherein it has been held that the appeal against the order passed by the civil judge, junior division shall be heard only by the civil judge and not by the district judge and the order passed by the district judge is a nullity. but the court which passed the decree in this case is not the civil judge, junior division, but the first joint civil judge, junior division, belgaum. it is not disputed that this dispute arises from belgaum city and that in belgaum city a joint civil judge, junior division is appointed to assist the court of the civil judge, senior.....
Judgment:

K.R. Gopivallabha Iyengar, J.

1. The appellant was the defendant in the trial court. The suit filed by the plaintiff was decreed against the appellant and the appeal filed by him was also dismissed. Against the concurrent decrees of the courts below, the appellant (defendant) has preferred this second appeal.

2. The Respondent filed the suit for the recovery of possession of an open site which lies between the properties owned by 2 parties, each party asserting his title to the property. The defendant in addition to asserting his title contended that he had perfected his title by adverse possession and that the plaintiff was not in possession of the property at any time within 12 years prior to the institution of the suit. On the question of title and measurements of the open site, the courts below have found in favour of the plaintiff and these findings are not disputed. On the merits it is only with regard to the 4th and 5th issues relating to the possession of the plaintiff within 12 years prior to the institution of the suit and defendant's title being perfected by adverse possession, that contentions are advanced in this second appeal.

3. The first contention urged by Sri Mandagi learned counsel for the appellant is that the District Judge who has disposed of the appeal had no jurisdiction to entertain the appeal. He points out that under Section 29 (2) (ee) of the Mysore Civil Courts Act, the District Judge cannot hear the appeals from the decrees and orders passed by the Civil Judge, Junior Division. For this proposition, reliance is placed on the decision of this court in R. S. A. No. 187 of 1966 (Mys) wherein it has been held that the appeal against the order passed by the Civil Judge, Junior Division shall be heard only by the Civil Judge and not by the District Judge and the order passed by the District Judge is a nullity. But the Court which passed the decree in this case is not the Civil Judge, Junior Division, but the first Joint Civil Judge, Junior Division, Belgaum. It is not disputed that this dispute arises from Belgaum City and that in Belgaum City a Joint Civil Judge, Junior Division is appointed to assist the Court of the Civil Judge, Senior Division. If that is so an appeal filed against the decree passed by the Joint Civil Judge, Junior Division cannot be heard by the Civil Judge. Therefore, the District Judge is competent to hear the appeal and dispose of the same. This distinction was perhaps not noticed by this Court while U.S.A. 187 of 1966 (Mys) was disposed of Section 29 (2) (ee) clearly states that the appeal filed before the District Judge as in this case does not stand transferred to the file of the Civil Judge. This appears to be the view taken by this Court in R. S. A. 299 of 1966 (Mys). Therefore, there is no strength in the contention that the District Judge had no competency to decide the appeal. The finding on issues 4 and 5 are not sustainable.

4. The acts alleged by the defendant are that he has put up a bamboo fence and a kalli fence. He has also constructed a urinal on the open site. The Courts below came to the conclusion that these acts are of such temporary nature that they cannot be construed as creating a title by adverse possession. The lower appellate Court has referred to a series of decisions holding that such acts done either singly or collectively do not create a right En favour of a person to claim title to the property by adverse possession. I may in this connection refer to another decision which emphatically takes the same view. In Kaladhari Singh v. Jibachh Mishra, AIR 1939 Pat 399, it is observed as follows:

'In deciding question of adverse possession the nature of the right exercised by the parties and the relationship between them will have to be looked Into in order to see whether the acts were permissible or so trivial as not to be noticed. In a case where the land is adjoining the house of the defendants and the plaintiff is not a resident of that locality where the land is situate little acts of possession cannot be effectively taken notice of at once by the plaintiff against whose interest they were exercised. If therefore a small piece of land of no present use to the owner but convenient in many other ways to the neighbour is made use of by the latter by doing on It acts of possession all however of a flimsy and temporary character such as stocking straw and logs of wood, building sheds and removing earth therefrom without objection for more than 12 years such a user excites no particular attention. It is neither meant to denote, nor understood as denoting on the side of the other a claim to the ownership of the land. Where such and no more is the case, it would be altogether wrong to hold that a claim to title by adverse possession has been made out.'

Reliance is placed on a decision in Premji Cursetji v. Goculdas Madhowji, ILR 16 Bom 338 which lays down that:

'A small piece of land being of no present use to its owner and being convenient in many ways to his neighbour, the latter made use of it, in various ways without objection for more than 12 years. A privy and sheds for cows, goats, fowls, etc., and a hut for a ghadriwalla-all however structures of a flimsy and purely temporary character-were said to have been constructed and maintained for many years on the said piece of land. Such user, it was contended amounted to adverse possession'.

'Held, that such user as this was insufficient to give a title to the laud by adverse possession. User of this sort under similar circumstances is common In this country and excites no particular attention. It is neither intended to denote, or understood as denoting-on the one side or the other-a claim to the ownership of the land, and where this, and no more, is the case it would be wrong to hold that a claim by adverse possession has been made out.'

It appears to me that this decision fully supports the conclusion arrived at by the courts below. Therefore, I see no reason to disturb their decisions. In the result this appeal is dismissed. There will be no order as to costs.


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