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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

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over the possession of property to the respondent

– plaintiff. Accordingly, three months time from

today is granted to the appellants to vacate and

hand over the vacant possession of the property to

the respondent – plaintiff.

Sd/-

JUDGE

RK/RSH/-