JUDGMENT
K. Ramanna, J.
1. This appeal is directed against the judgment and decree passed by the 30th Addl. City Civil Judge, Bangalore in O.S. No. 1450/1985 whereby the trial Court decreed the suit and the appellant-defendant No. 1 was given two months time to remove the structure put up on the suit schedule property and to hand over vacant possession of the same to the respondent-plaintiff. It was also ordered that if the defendant tails to comply with the said order, plaintiff is at liberty to get possession of the suit schedule property along with the structure. The appellant-defendant No. 1 was also restrained by means of permanent injunction from interfering with the peaceful possession and enjoyment of the suit schedule property of the plaintiff. But the trial Court dismissed the suit with regard to the relief of declaration of title and mandatory injunction.
For the sake of convenience, the parties will be referred to by their rankings before the trial Court
2. The facts of the case are that plaintiff filed a suit for permanent injunction against the defendant and two others, alleging interference from the defendants. It is contended that the plaintiff is the owner and she is in possession of the suit schedule property. Earlier, original owner Muniswamappa @ Papaiah was in possession and enjoyment of the suit schedule property. It is further case of the plaintiff that alter filing of the suit, the defendant No. 1 taking advantage of the fact that there was no order of temporary injunction in favour of the plaintiff, after commencement of the Court vacation, defendant No. 1 seriously bent upon committing trespass and put up one temporary shed in the year 1988 and two temporary sheds in the year 1989 and another temporary shed in the year 1993, each shed measuring 10′ x 10′ built with mud walls and asbestos sheet roof. On the date of filing of the suit till 1988, suit schedule property was a vacant site. Therefore, he has filed an application under Order 6 Rule 17 seeking amendment of prayer and sought additional relief of mandatory injunction and declaration of title to the suit schedule property.
3. The defendant filed his written statement contending that the suit schedule property was part of the family property and it formally stood in the name of C. Muniswamappa, the uncle and adoptive father of the defendant The BDA also recognised the rights of the family and issued a formal document Under a registered deed dated 25-3-1965 ancestral property was divided among family members. The suit schedule property fell to the joint share of Muniswamappa and the defendant and as such they continued in joint ownership and possession of the suit property. The defendant built cow shed and structures long back on the property and he is in exclusive possession and enjoyment It is also contended that Muniswamappa, one of the joint co-owners of the suit schedule property created a collusive document in favour of Adilaxmamma and the said Adilaxmamma came to the spot and asked him to hand over possession of the land to her, but after knowing that the Muniswamappa had no right to alienate the property, she left the place and thereafter it was learnt that she died in the year 1974 or 1975. The said Adilaxmamma did not take any steps to assert her rights and she did not apply to the Corporation or CITB or any authority for transfer of the khata. The khatas in the Corporation, City Survey and BDA still stand in the name of Muniswamappa. After the demise of Muniswamappa, when the defendant applied to the Corporation to change the khata of the property, they issued an endorsement that there was no khata in respect of the suit schedule property. Thereafter the defendant filed O.S. No. 2633/1985 against the Corporation which is still pending. There was no power of attorney executed by the said Adilaxmamma as she died long back, The alleged trespass over the suit schedule property on 8-3-1985 and 28-4-1985 are all false. In fact, vendors of the plaintiff have no right or title and the plaintiff cannot claim ownership over the suit schedule property and plaintiff was not in possession of the suit schedule properly. By way of additional written statement, it was contended that plaintiffs contentions that defendant had put up one temporary shed in the year 1998 and two sheds in the year 1989 and another in the year 1993 are false. It is also contended that plaintiff is not entitled to any of the reliefs sought as they are barred by limitation and there is no cause of action for the suit. Hence, the defendant prays for dismissal of the suit.
4. On the basis of the available pleadings, the trial Court framed the following issues:
(1) Whether plaintiff proves lawful possession of suit schedule property on the date of suit?
(2) Whether plaintiff proves the alleged interference by defendant?
(3) Is plaintiffs suit not maintainable.
(4) Whether plaintiff is entitled for permanent injunction?
Addl. Issucs;
(1) Whether plaintiff proves the title over the suit schedule property as owner thereof?
(2) Is the suit barred by limitation?
(3) Does the suit suffer for want of cause of action?
(4) Whether plaintiff proves that 1st defendant has put up sheds in the suit schedule property during 1988, 1989 & 1993 as alleged in para 9(b) of the plaint?
(5) Whether plaintiff is entitled for possession of suit property?
(6) Whether plaintiff is entitled for mandatory injunction?
5. On behalf of the plaintiff, her father as a power of attorney holder was examined as P.W. 1 and Exs.P-1 to P-26 were marked, The defendant No, 1 was examined as D.W. 1 and Exs.D-1 to D-3 were marked. The trial Court, after considering the oral and documentary evidence as well as the arguments advanced by both the sides, recorded its findings on the aforesaid issues as under:
Issue No. 1 : In the affirmative
Issue No. 2 : In the affirmative
Issue No. 3 : In the negative
Issue No. 4 : In the affirmative
Addl. Issues:
Issue No. 1 : In the affirmative
Issue No. 2 : Point of limitation with regard
to relief of permanent
injunction and for possession
is answered in the negative.
With regard to declaration, it
is in the affirmative and for
mandatory injunction, it is
partly in the affirmative and
partly in the negative.
Issue No. 3 : In the negative
Issue No. 4 : In the affirmative
Issue No. 5 : In the affirmative
Issue No. 6 : In the negative.
Heard the arguments of learned Counsel for the appellant and learned Counsel for respondent
6. The learned Counsel for the appellant re-iterated the grounds urged by him before the trial Court. He contended that late Muniswamappa has no absolute right over the suit schedule property under the possession certificate said to have been issued by the CITB. Therefore, the respondent-plaintiff who is said to have purchased the property from Adilakshmamma who had purchased the property from C Muniswamappa @ Papaiah does not derive any right title or interest over the property. There is no evidence on record adduced by the plaintiff that her vendor had acquired any title to the suit property. Therefore the plaintiff will not get any right or title over the suit property. The claim of the plaintiff is based on an inadmissible document. The trial Court has relied on the evidence of P.W. 1 contrary to Section 65 of the Evidence Act. Alienation if any had taken place in favour of the vendor of the plaintiff and in favour of the plaintiff are contrary to Section 22 of the Hindu Succession Act. The property in question is an ancestral property of the appellant-defendant which has been acquired by CITB and which was again regranted in fovour of late Muniswamappa who was the eldest coparcener of the joint family of appellant-defendant. Only possession certificate said to have been given will not get him any right over the property and he had no right of alienation in fevour of Adilakshmamma – vendor of the plaintiff. The trial Court without proper appreciation of the evidence on record, came into an erroneous conclusion in passing the decree directing the appellant-defendant to hand over vacant possession of the property by removing the structure put up on the said property. The respondent-plaintiff failed to enter the witness box, but general power of attorney holder examined on her behalf. Therefore, the defendant lost an opportunity of cross examining the plaintiff. Therefore the trial Court committed an error in believing the version of P.W. 1. The finding recorded by the trial Court is that one Chowdappa was separated from the joint family and basing on that the trial Court declined to hold that other members continued to remain in the joint family. The suit is barred by limitation. Therefore the judgment and decree suffers from self contradictions. The decree passed by the Court below is not an executable decree. Though the written statement is filed in the year 1986, amendment application came to be filed by the respondent-appellant in December, 1993. In fact, one cow shed and other structures were put up by defendant long before filing of the suit and since plaintiff did not raise any objections for putting up constructions. Therefore, the defendant perfected his right over the property and he cannot be evicted. The learned Counsel for the appellant relied on the decision rendered by the Apex Court in Vidhyadhar v. Mankikrao and Anr. wherein it has been held that where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct.
9. He also relies on the decision of the Apex Court in Janki Vashdeo Bhojwani and Anr. v. Indusind Bank Ltd and Ors. 2005 SAR (Civil) 103 wherein it is held that power of attorney holder – can appear, apply and act in any court on behalf of principal but such act cannot be extended to depose in the witness box in place of principal – if the power of attorney holder has rendered some acts in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him – he cannot depose for the principal in respect of the matter which only the principal can have personal knowledge and in respect of which the principal is entitled to be cross examined.
8. He has also relied on the decision in the case of Remco Industries Workers House Building Co-Op. Society v. Lakshmeesha M and Ors. 2003 SAR (Civil) 804 wherein it is held that identity of land in suit -burden lics on the plaintiff to establish – failure of defendants to raise clear and specific pleading in W.S to base their claim for title and possession of suit land on strength of certain documents – effect of – plaintiff has to succeed on strength of its own case and not on the weakness of the case of the defendant.
9. Therefore, it is argued that the trial Court has not given sufficient opportunity to the defendant to adduce furtrher evidence in spite of the requests made by him on the ground of ill health of his counsel. Since plaintiff failed to prove that her vendor had purchased the property from Muniswamappa and that the suit schedule property is the absolute property of Muniswamappa, she is not entitled to claim eviction of the appellant Hence, the learned Counsel for appellant prays for dismissal of the suit filed by the respondent.
10. On the other hand, learned Counsel for respondent-plaintiff submits that late Muniswamappa being the owner of the property which was acquired by CITB and in turn, CITB granted five sites in his fevour, out of which the schedule property was sold to Adilakshmamma. Accordingly, plaintiff had produced the document Ex.P-21 to show that Muniswamappa got the allotment letter of the CITB dated 6-11-1962. Ex.P-1 is the sale deed executed by Muniswamappa in favour of Adilakshmamma. Adilakshmamma executed a sale deed in favour of the respondent Therefore, vendor of the plaintiff is the absolute owner of the suit schedule property. Since the defendant-appellant was obstructing peaceful possession and enjoyment of the property, plaintiff filed a suit for permanent injunction during the pendency of the suit that appellant-defendant illegally erected sheds in the years 1988, 1989 & 1993. Therefore, the respondent filed an application for amendment of the prayer and sought additional prayer of declaration and mandatory injunction and the said application came to be allowed. The said order has not been challenged by the appellant-defendant Since the original documents have not been given to Adilakshmamma by late C Muniswamappa, plaintiff got the certified copy of the sale deed – Ex.P-1 and marked through P.W. 1 which is admissible in evidence. Therefore, the trial Court rightly held that she is the absolute owner of the suit schedule property. Since the respondent executed power of attorney in favour of her father, he examined himself as P.W. 1 before this Court. Since P.W. 1 and plaintiff are residents of the same place, he knows about the suit property purchased by his daughter from Adilakshmamma. Therefore, non-examination of the plaintiff will not take away her case. Of course, khata in respect of the suit schedule property has not been changed in the name of Adilakshmamma. As the CITB did not execute absolute sale deed in favour of C Muniswamappa, the BDA on 17-6-1985 has executed a sale deed in favour of the respondent herein after receiving the value of the schedule site as per Ex.P-3. Since there was an interference by the defendant, cause of action arose for the plaintiff to file a suit in the year 1985 seeking permanent injunction.
11. It is further argued that the defendant has not proved before the Court that he has perfected his title by adverse possession or that suit property was the joint family property of herself and his uncle late C Muniswamappa in whose favour five sites have been allotted; that, the sheds were erected by the defendant during the pendency of the suit in the years 1988, 1989 & 1993. Therefore, the suit filed will not be barred by limitation. In support of the contentions, the plaintiff relied on the decision of the Apex Court in the case of ILR 1998 KAR 1Indira v. Arumugam and Anr.422 wherein it is held that once the title is established, unless the defendant proves adverse possession, the plaintiff cannot be non-suited.
12. She has also relied on the decision of the Apex Court in the case of Nagaraja Rao BS v. MK Krishna Rao By LRs 1983 (1) KLJ 344 wherein it is held that when the suit is brought for possession on title, it is for the defendant to plead and prove that he has perfected his title by adverse possession. Therefore, the provisions of Article 65 is very much applicable in this case.
13. She has also relied on another decision of this Court in GR Nagabhushan (Deceased) By LRs v. Swami Hathiramjee Mutt, Tirupathi 2004 (1) KCCR 627 wherein it is held that Article 65 – suit for possession properly in care and custody of mahant – property belonging to religious Mutt – suit filing within 12 years from the date of death of Mahant- held that suit is in time.
14. She has also relied on another decision of the Apex Court in Ravinder Kumar Sharma v. State of Assam and Ors. wherein it is held that cross objection – decree passed by Court of first instance – appeal against – respondent can question adverse finding without filing cross objection – finding of cross -objection is optional and not mandatory.
15. Therefore, it is contended that the trial Court has rightly decreed the suit directing the appellant to remove the temporary sheds erected by him in the year 1988, 1989 & 1993 and hand over vacant possession of the suit schedule property within two months is in accordance with law. Hence, he prayed for dismissal of the appeal.
16. In the light of the arguments advanced, let me consider “whether the trial Court is justified in holding that the plaintiff has proved the title over the suit schedule property? If so, whether finding recorded by the trial Court that plaintiff is entitled to possession of the suit schedule property as a lawful owner is correct?
17. The admitted facts are that the appellant is none other than the nephew of late Muniswamappa @ Papaiah. Late Muniswamappa, father of the appellant and Chowdappa are brothers. Father of the appellant died when appellant was a minor. According to the appellant, the suit schedule property belongs to joint family property and late Muniswamappa @ Papaiah was managing the affairs of the joint family property. The specific case of the respondent-plaintiff is that suit schedule property exclusively belongs to late Muniswamappa and he sold it in favour of one Adilakshmamma as per Ex.P-1. In turn, Adilakshmamma sold the suit schedule property to the respondent-plaintiff as per Ex.P-3 on 18-3-1992 through her son and power of attorney holder – Vijaykumar. Possession was taken by the respondent-plaintiff on the same day and she is in possession and enjoyment of the same. Her name has also been entered in the encumberance certificate. The said Adilakshmamma did not take any steps to change khata in her name by submitting an application to the Corporation or CITB or to any authority for transfer of khata. The BDA allotted sites in favour of late Muniswamappa i.e., site Nos. 33, 34, 36, 37 & 38 measuring 30’x40′ on the basis of the compromise entered into between the parties in W.P. No. 1025/1959 wherein late Muniswamappa @ Papaiah was also one of the petitioners. Apart from allotting the said site Nos. 33, 34, 36, 37 & 38 to late Muniswamappa, he was further allotted two more sites by the CITB, Subsequently, Muniswamappa was issued with the letter of allotment as per Ex.P-21. It is also evident that an endorsement was also issued by the CITB staring that extent of sites have been changed to 30’x45′ and Muniswamappa was required to make additional payment Subsequently, Muniswamappa paid the additional amount as per Ex.P-23 to P-26. The contention taken by the appellant before the trial Court was that his another uncle Chowdappa and his sons executed release deed by talcing certain properties i.e., site Nos. 37 & 38 and himself and his uncle Muniswamappa continued as joint family members. Therefore, the suit schedule property if any sold by Muniswamappa in favour of Adilakshmamma is null and void. Muniswamappa alone has no right or title to sell the suit schedule property. But the evidence on record before the trial Court clearly indicates that the appellant–defendant failed to prove that his another uncle Chowdappa and his sons executed release deed and himself and his uncle Muniswamappa @ Papaiah continued as member of the joint family. Therefore, the trial Court has rightly recorded its finding that there is partition in the family and Chowdappa separated from the joint family and the suit schedule property is not a joint family property of the appellant-defendant and his uncle Muniswamappa. It is not the contention of the appellant-defendant No. 1 that Muniswamappa and defendant No. 1 were re-united or that there was an agreement to continue jointly. Though the appellant-defendant stated in the cross examination that he has got documents to show that himself and his uncle Muniswamappa were residing together, he has not produced those documents to prove that suit schedule property is a joint family property and after the death of Muniswamappa, he has succeeded to the suit schedule property as a co-owner.
18. The trial Court has rightly drawn presumption with regard to the joint Hindu family by holding that plea of joint Hindu family is not available in favour of the appellant-defendant No. 1 and that even after Chowdappa separated, himself and Muniswamappa were either re-united or that there was any agreement to continue jointly. The admissions made by the appellant-D.W. 1 that after purchase of the suit schedule property, Adilakshmamma had come for asking possession and she was informed that property was not sold by him. This circumstance clearly indicates that even though he had knowledge about sale of suit schedule property by his uncle in favour of Adilakshmamma, he had kept quite without challenging execution of the sale deed in favour of Adilakshmamma by his uncle Muniswamappa. Therefore, the trial Court has lightly appreciated the evidence on record in coming to the conclusion that respondent-plaintiff had purchased the property from Adilakshmamma under a registered sale deed as per Ex.P-3.
19. Admittedly, suit schedule property is an open site and possession is always followed by title. Therefore, the respondent-plaintiff who purchased the property from its lawful owner Adilakshmamma under a registered sale deed, continues to be in possession. Since CITB has not executed sale deed in favour of Muniswamappa @ Papaiah, the BDA executed sale deed in favour of the present respondent-plaintiff after receiving the value of the site. Ex.P-14 & 15 are the relevant documents to show that respondent-plaintiff had paid the amount to BDA. Therefore, taking into consideration the oral and documentary evidence placed on record, the trial Court has rightly held that respondent-plaintiff has proved her title to the suit schedule properly as a owner and she is in possession of the same. Therefore, I do not find any material in the contention of learned Counsel for the appellant that late Muniswamappa has no absolute right over the suit schedule property to sell the same in favour of Adilakshmamma.
20. Initially, respondent-plaintiff filed a suit for permanent injunction but the trial Court has not granted temporary injunction in favour of the respondent-plaintff during the pendency of the suit The appellant-defendant No. 1. taking advantage of the same trespassed into the schedule property and has constructed one shed in the suit schedule property. Thereafter the respondent-plaintiff filed an application under Older 6 Rule 17 CPC seeking amendment of the prayer to declare that she is the owner of suit schedule property and she is entitled to possession and also sought mandatory injunction. When the suit was pending, the appellant-defendant No. 1 said to have been constructed temporary sheds, one shed in the year 1988 and two sheds in the year 1989 and another shed in the year 1993. According to respondent-plaintiff, before filing of the suit, appellant-defendant interfered with her possession on 8-3-1985 and 28-4-1985. Therefore she filed a complaint before the police and produced the endorsement as per Ex.P-19. The appellant-defendant did not challenge this part of the pleadings and has not been denied during the cross examination. Therefore, the trial Court has rightly answered issue No. 2 in the affirmative.
21. According to the respondent-plaintiff, the appellant-defendant has constructed temporary sheds measuring 10’x10′ in the years 1988, 1989 & 1993. Though amendment application was filed by the respondent-plaintiff on 6-12-1993, it was allowed on 1-3-1994. The appellant-defendant herein who filed an additional written statement, denied that he has constructed the said sheds during the pendency of the suit According to him, one shed was being used as cow shed and other sheds have been let out The appellant-defendant has not examined any independent witness or tenants to whom he has let out three temporary sheds. He has also not produced any lease deed or permission from the corporation to construct small houses. On the other hand, evidence placed on record by the respondent-plaintiff discloses that the suit is filed in the year 1985, she had not got temporary injunction and during the pendency of the suit, the appellant constructed temporary sheds in the years 1988, 1989 & 1993 without obtaining any licence from the competent authority. It is a well settled law that even during the pendency of the suit, if the amendment application is allowed, it dates back to the date of filing of the suit. In fact, amendment application came to be filed in the year 1993. Considering the fact that appellant herein constructed temporary sheds after tiling of the suit, in view of the settled law, the amendment allowed dates back to the date of filing of the suit. The respondent-plaintiff places sufficient material to prove that during the pendency of the suit, the appellant-defendant has constructed sheds in the years 1988, 1989 & 1993 and therefore the said sheds are to be demolished. Therefore, the respondent is entitled for the mandatory injunction for demolition of four sheds constructed in the suit property by the appellant-defendant. Hence, the question of limitation docs not arise.
22. Therefore, considering the facts and circumstances of the case and the evidence placed on record, it is held that the trial Court has rightly decreed the suit filed by the respondent-plaintiff granting permanent and mandatory injunction in respect the suit schedule property.
23. In the result, this appeal is dismissed with costs. The respondent-plaintiff is entitled to recover possession of the suit schedule property from the appellant-defendant and the appellant-defendant is given three months time to remove the structures put up by him over the suit schedule property and hand over vacant possession of the suit schedule property to the respondent-plaintiff. If the appellant-defendant No. 1 mils to comply with same, the respondent-plaintiff is entitled to take possession of the suit schedule property along with the structures. The appellant-defendant No. 1 is also restrained from interfering with peaceful possession and enjoyment of the suit schedule property by the respondent-plaintiff.