{"id":130282,"date":"2007-02-23T00:00:00","date_gmt":"2007-02-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/krishnamurthy-s-setlur-dead-by-vs-o-v-narasimha-setty-ors-on-23-february-2007"},"modified":"2016-11-27T22:32:14","modified_gmt":"2016-11-27T17:02:14","slug":"krishnamurthy-s-setlur-dead-by-vs-o-v-narasimha-setty-ors-on-23-february-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/krishnamurthy-s-setlur-dead-by-vs-o-v-narasimha-setty-ors-on-23-february-2007","title":{"rendered":"Krishnamurthy S. Setlur Dead By … vs O. V. Narasimha Setty & Ors on 23 February, 2007"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Krishnamurthy S. Setlur Dead By … vs O. V. Narasimha Setty & Ors on 23 February, 2007<\/div>\n
Author: Kapadia<\/div>\n
Bench: Dr. Arijit Pasayat, S. H. Kapadia<\/div>\n
           CASE NO.:\nAppeal (civil)  5079 of 2000\n\nPETITIONER:\nKrishnamurthy S. Setlur Dead by LRs\n\nRESPONDENT:\nO. V. Narasimha Setty & Ors\n\nDATE OF JUDGMENT: 23\/02\/2007\n\nBENCH:\nDr. Arijit Pasayat & S. H. Kapadia\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
KAPADIA, J.\n<\/p>\n
\tThis civil appeal arises out of judgment and decree rendered by
\nKarnataka High Court on 22.3.1999 filed under section 96 CPC against
\njudgment and decree dated 11.10.1996 passed in O.S. No. 3656\/81 on the
\nfile of City Civil Judge, Bangalore, decreeing the suit for declaration. By the
\nimpugned judgment, the High Court has set aside the judgment and decree
\ndated 11.10.1996. Hence this civil appeal has been filed by the LRs. of
\ndeceased Krishnamurthy S. Setlur (original plaintiff).\n<\/p>\n
\tThe facts giving rise to this civil appeal are as follows.
\n\tOne Kalyana Sundram Iyer was the owner of the suit properties.  H.R.
\nNarayana Iyengar (represented by his LRs.) claimed to have purchased the
\nsuit properties from Iyer under sale deed dated 10.7.1942. At the relevant
\ntime, one Shyamala Raju was the cultivating tenant. Iyengar (since
\ndeceased) claimed that he had terminated the tenancy in 1948. On
\ntermination of the tenancy disputes arose between Iyengar and Shyamala
\nRaju. Consequently, Suit No. 79\/49 came to be instituted by Iyengar in the
\ncourt of Second Munsiff, Bangalore. The suit was instituted by Iyengar
\nagainst K.S. Setlur and Shyamala Raju stating that they had unauthorisedly
\ndisturbed his possession. Suit No. 79\/49 was for permanent injunction
\nrestraining the defendants from interfering with the possession of Iyengar
\n(plaintiff).   In his defence Raju stated that he was in possession for eight
\nyears; that he continued to be in possession; that Iyengar was collecting rents
\narising from the suit properties as a constituted attorney of K.S. Setlur; that
\non termination of the Power of Attorney, he paid rent to K.S. Setlur and,
\ntherefore, he was in possession of the suit lands as a tenant under K.S. Setlur
\nand not under Iyengar (plaintiff). He (Raju) in his written statement stated
\nthat he continued to remain in possession till 28.8.1950 (see p. 78 of the SLP
\nPaper Book). According to Iyengar, defendant No. 2 (Shyamala Raju) was
\nhis tenant who turned hostile when he terminated the tenancy. According to
\nIyengar, there was collusion between Shyamala Raju and K.S. Setlur to
\ndefeat his rights. In the said suit, K.S. Setlur contended that he was the real
\nowner who had appointed Iyengar as his constituted attorney to collect rent
\nand profits. It was contended that the sale deed executed by Kalyana
\nSundram Iyer was a benami transaction. He further alleged that in 1946 he
\nhad cancelled the Power of Attorney in favour of Iyengar. He further alleged
\nthat after 1946, Shyamala Raju had considered him as the landlord. Rent was
\npaid to him by Shyamala Raju. Raju had attorned in favour of K.S. Setlur.
\nLease deeds were executed by Shyamala Raju in favour of K.S. Setlur. By
\njudgment dated 28.2.1951, delivered by the Munsiff Court in Suit No. 79\/49,
\nit was held that the factum of Shyamala Raju being in possession of the suit
\nlands till 28.8.1950 stood proved, therefore, it was held that Raju was in
\npossession of the suit lands from 1946 onwards. It was further observed by
\nthe trial court that the disputed suit lands were not in de facto possession of
\nIyengar. The trial court relied upon the revenue records of 1947-48 showing
\ncultivation of the lands by Shyamala Raju (see p. 91 of the SLP Paper
\nBook). The trial court did not believe the plaintiff (Iyengar) to say that he
\nhad entered into possession in 1947. However, the trial court also observed
\nthat the plaintiff had a conveyance in his favour from Kalyana Sundram Iyer
\nbut the suit was for permanent injunction and since the plaintiff was not in
\nactual possession it was not possible to grant injunction restraining
\nShyamala Raju from entering the lands. The trial court further held that
\nShyamala Raju as a tenant had attorned in favour of K.S. Setlur. The trial
\ncourt, however, held that it was not in a position to give a clear-cut finding
\nas to whether Shyamala Raju was the tenant of Iyengar or of K.S. Setlur. In
\nthis connection we find on page 95 of the SLP Paper Book the conclusion of
\nthe trial court which states that, “the only inference that can be drawn is that
\nthe second defendant (Shyamala Raju) is in possession and cultivation of the
\nsuit disputed lands; whether he was tenant under the plaintiff (Iyengar) or
\nthe first defendant (K.S. Setlur) is not  established.” In the said judgment, the
\ntrial court further observed that since the plaintiff had instituted a suit for
\npermanent injunction it was not necessary for the court to go into the
\nquestion of the benami nature of the sale deed executed by Kalyana
\nSundram Iyer in favour of the plaintiff as well as the real ownership of the
\nsuit lands. According to the trial court, it was not necessary to go into the
\nquestion of ownership except to the limited extent, namely, attornment of the
\ntenancy by Shyamala Raju in favour of K.S. Setlur and not in favour of
\nIyenger (plaintiff). According to the trial court, since Shyamala Raju
\n(defendant no. 2) had continued to remain in possession till he was
\nprevented by an order of interim injunction which stood subsequently
\nvacated and since the plaintiff had failed to prove his actual possession, the
\nplaintiff was not entitled to an order of injunction.The question of title was
\nnot gone into by the trial court. The question of title deed being benami was
\nnot gone into by the trial court. In conclusion, the trial court observed that it
\nwas open to the plaintiff to file suit on title and for possession. The trial
\ncourt observed that grant of injunction is a matter of discretion. The court
\nwas, therefore, not inclined to grant permanent injunction in favour of the
\nplaintiff. At this stage, we may point out that the litigation has a chequered
\nhistory. We need not go into the various stages of this litigation except to
\nstate that ultimately by judgment dated 14.12.1961 delivered by Additional
\nCivil Judge, Bangalore vide Regular Appeal No. 70\/51 the suit filed by
\nIyengar (plaintiff-appellant) ultimately stood dismissed. The judgment of the
\ntrial court dated 28.2.1951 stood affirmed. The termination of tenancy of
\nShyamala Raju was proved but there was no evidence that the plaintiff had
\nobtained actual possession from the ex-tenant on termination of tenancy. In
\nthe result, the appeal stood dismissed on the ground that the appellant
\n(Iyengar) was not in possession of the suit lands on the date of filing of Suit
\nNo. 79\/49 (see p. 118 of the SLP Paper Book). The appeal of Iyengar stood
\ndismissed on 14.12.1961.\n<\/p>\n
\tComing to the second round of litigation, it may be stated that after
\nShyamala Raju attorned in favour of K.S. Setlur, differences arose which led
\nto litigation between K.S. Setlur on one hand and Shyamala Raju on the
\nother hand. In the said litigation, Iyengar was not a party. In the said
\nlitigation LRs. of Iyengar were not made party-defendants. Iyenger died on
\n6.12.1959. As stated above, disputes arose between K.S. Setlur and
\nShyamala Raju around 1962. K.S. Setlur instituted Suit No. 89\/63 for
\ndeclaration of his title and for permanent injunction. In the said suit K.S.
\nSetlur contended, that Iyengar was his constituted attorney; that Iyengar had
\npurchased the suit lands from Kalyana Sundram Iyer in 1942; that he had
\nterminated the Power of Attorney in favour of Iyengar in 1946; that
\nShyamala Raju had attorned the tenancy in his favour in 1946 and that on
\n23.4.1962 Shyamala Raju had surrendered the suit lands to K.S. Setlur. In
\nthe said suit, K.S. Setlur alleged, that Shyamala Raju was his ex-tenant; that
\nRaju had surrendered his possession on 23.4.1962, and after surrender he has
\nbeen interfering with his possession. It appears that Shyamala Raju had
\npurported to sell a portion of the suit lands which led Setlur to file Suit No.
\n89\/63 saying that Shyamala Raju had no right to convey the suit lands or any
\nportion thereof. In the said suit, originally one of the issues framed by the
\ntrial court was whether K.S. Setlur was the owner of the suit lands and
\nwhether he was in possession of the suit lands. Later on in appeal, the
\nquestion framed was whether K.S. Setlur had proved his possessory  title to
\nthe suit lands. This question was answered in favour of K.S. Setlur in the
\naffirmative in RSA No. 545\/73, which appeal stood disposed of by the High
\nCourt vide judgment dated 14.8.1981 arising from Suit No. 89\/63 filed by
\nK.S. Setlur. It is this judgment dated 14.8.1981 of the High Court which
\nconstitutes the basis of the judgment of the trial court in the present
\nproceedings. Be that as it may, the High Court in its judgment in RSA No.
\n545\/73 held that since Shyamala Raju had surrendered the suit lands in
\nfavour of K.S. Setlur in 1962 it was obvious that K.S. Setlur was put in
\npossession through the intervention of the Tahsildar (see p. 126 of the SLP
\nPaper Book). According to the High Court, the tenancy of Shyamala Raju
\nstood terminated in 1946, that Setlur has been in possession since 1946, that
\nSuit No. 89\/63 was filed by Setlur against Shyamala Raju in February, 1963
\nand, therefore, when Setlur had been in possession for more than 12 years
\nsince 1946 he had the possessory title vested in him and his possession had
\nto be protected against the whole world except the true owner and, therefore,
\naccording to the High Court, the trial court should not have dismissed the
\nsuit of Setlur against Shyamala Raju bearing No. 89\/63 but should have
\ngiven a declaration that Setlur had the possessory title for more than 12 years
\nand the trial court should have given declaration to that effect. Accordingly,
\nthe High Court vide its judgment dated 14.8.1981 overruled the decision of
\nthe trial court dismissing the suit filed by Setlur for declaration of his title.
\nAccordingly in the second round of litigation Setlur succeeded in obtaining a
\ndeclaration to the effect that he had possessory title in him. At this stage, it
\nmay be noted that Iyengar (since deceased) never instituted a suit for
\ndeclaration of title.\n<\/p>\n
\tBefore coming to the present suit, it may be pointed out that during
\nthe intervening period between the above two proceedings, K.S. Setlur had
\ninstituted Suit No. 94\/56 against Iyengar for accounts and reconveyance
\nbased on the sale deed of 1942 executed by Kalyan Sundram Iyer in favour
\nof Iyengar. In Suit No. 94\/56, the question of possession or prescriptive title
\nwas neither raised nor decided. Issue No. 12 in that suit related to the plea of
\nreconveyance. The said suit was dismissed on 10.11.1961 by the Additional
\nCivil Judge, Bangalore. In that suit, Setlur had claimed that he was the real
\npurchaser of the suit lands from Kalyan Sundram Iyer in 1941-42; that
\nIyengar was his agent and was only a benamidar and, therefore, the purchase
\nby Iyengar was only for the benefit of K.S. Setlur and, therefore, Iyengar or
\nhis LRs. were liable to reconvey the suit lands to the plaintiff (K.S. Setlur).
\nThis story was not believed by the trial court. By the said judgment dated
\n10.11.1961, it was held that the case of Setlur was a fairy tale and that Setlur
\nhad failed to prove that the suit lands were purchased from his funds or from
\nthe funds of his joint family. In the circumstances, it was held by the trial
\ncourt that Setlur was not entitled to reconveyance and that he had failed to
\nprove that Iyengar was only a benamidar in the transaction of  1941-42 with
\nKalyan Sundram Iyer. Accordingly, Suit No. 94\/56 filed by Setlur against
\nIyengar stood dismissed. In the said suit, Setlur had also sought a permanent
\ninjunction restraining Iyengar\/ his LRs. from interfering with his peaceful
\npossession and also for restraining Iyengar\/ his LRs. from claiming
\npossession. According to the appellants herein, the prayer for injunction was
\nnot pressed in view of the judgment in the earlier Suit No. 79\/49 on the
\nquestion of possession between Iyengar and Setlur. However, according to
\nthe LRs. of Iyengar, Setlur did not press for injunction in the said suit for
\nreconveyance as Setlur was dispossessed in 1953.\n<\/p>\n
\tTo complete the chronology of events, K.S. Setlur (plaintiff) in the
\npresent proceedings instituted, before the Additional City Civil Court,
\nBangalore, Suit No. 3656\/81. This suit was instituted on 11.12.1981. The
\nsaid suit was for a declaration that Setlur was the owner of the suit lands and
\nthat the LRs. of Iyengar or their alienees  got no title from two sale deeds
\ndated 21.5.1970 and 7.9.1970 executed by LRs. of Iyengar in favour of
\nNarasimha Setty and others (defendants). In the said suit, Setlur once again
\nalleged that the suit lands originally belongs to Kalyana Sundram Iyer, they
\nwere cultivated by Shyamala Raju, in 1942 he had purchased the suit lands
\nthrough his constituted attorney (Iyengar), that the said deed of 1942 was
\nnominally in favour of Iyengar as his agent and that Shyamala Raju had
\nattorned in his favour in 1946. The above averment regarding the benami
\nnature of transaction was made by K.S. Setlur in the present suit despite the
\ndismissal of his Suit No. 94\/56 against Iyengar. It was further submitted by
\nK.S. Setlur that vide judgment dated 14.8.1981, delivered by the High Court
\nin RSA No. 545\/73, he has been declared to have acquired possessory title to
\nthe suit lands as being in possession thereof between 1946 and 1963 and,
\ntherefore, the LRs. of Iyengar had no right, title or interest to convey the suit
\nlands on 21.5.1970 and 7.9.1970 to Narasimha Setty and others. In the said
\nsuit Setlur sought a declaration that he may be declared as an owner. He has
\nalso prayed for possession of a portion of the properties allegedly occupied
\nby Setty and others and for permanent injunction (see p. 134 of the SLP
\nPaper Book). In the said suit, the LRs. of Iyengar as well as their successors-
\nin-title (defendants) denied that the suit property was purchased by Iyengar
\nfor K.S. Setlur as his Power of Attorney holder. They also denied the
\nallegation that K.S. Setlur had obtained possession at the time of attornment
\nof tenancy in 1946. The defendants contended that neither K.S. Setlur nor
\nShyamala Raju were in possession in 1946 and that documents of allotment
\nwere fictitious and never acted upon. They contended that they were in
\nexclusive, continuous and undisturbed physical possession and enjoying the
\nsuit lands. The defendants asserted that Iyengar had purchased the suit lands
\nfrom Kalyana Sundram Iyer and they were in lawful and exclusive
\npossession of the suit lands. The defendants further stated that they were
\nunaware of the proceedings between K.S. Setlur and Shyamala Raju
\nculminating in the judgment and decree dated 14.8.1981 in RSA No. 545\/73
\nand, in the circumstances, the said judgment of the High Court in RSA No.
\n545\/73 was not binding on them. They denied of having taken possession
\nwithout authority of law in September\/ November, 1970 as alleged by K.S.
\nSetlur (plaintiff). They also relied upon the revenue records from 1967 to
\nshow that they were in possession of the suit lands. (see p. 140 of the SLP
\nPaper Book)<\/p>\n
In the present suit, issues were framed by the trial court. One of the
\nmain issues was whether the plaintiff (K.S. Setlur) has proved that the
\ndefendants wrongly came into possession of the suit lands in 1970 and
\nwhether the plaintiff was entitled to get back the possession from the
\ndefendants herein. The said issue was answered in favour of the plaintiff by
\nthe trial court. In the reasoning, the case of the plaintiff has been set out to
\nsay that Suit No. 3656\/81 (present suit) was filed for a different cause of
\naction than the earlier suit filed by the plaintiff (K.S. Setlur) for
\nreconveyance bearing Suit No. 94\/56. That the present suit was filed by the
\nplaintiff in view of his dispossession in 1970. (see p. 153 of the SLP Paper
\nBook). According to the plaintiff, Iyenger had lost his suit for permanent
\ninjunction. The appeal therefrom was ultimately disposed of on 14.12.1961.
\nTherefore, according to the plaintiff, up to 14.12.1961 Iyengar was not in
\npossession since in that suit the court came to the conclusion that Iyengar
\nwas not in possession of the suit lands. That suit filed by Iyengar was Suit
\nNo. 79\/49 which came to be ultimately dismissed vide judgment dated
\n14.12.1961 delivered by Additional Civil Judge, Bangalore in RA No.
\n70\/51. In the present suit, the plaintiff contended that he had entered into
\nsettlement with Shyamala Raju in 1962-63; that on 23.4.1962 Shyamala
\nRaju had surrendered his possession and K.S. Setlur (plaintiff) was put in
\npossession, therefore, according to the plaintiff, he was in possession till
\n1962. (see p. 154 of the SLP Paper Book).\n<\/p>\n
In the present suit, on the above pleadings and evidence, the trial court
\ncame to the conclusion that it is around 1970 that the plaintiff stood
\ndispossessed when the LRs. of Iyengar executed two sale deeds on
\n21.5.1970 and 7.9.1970 in favour of defendant No. 1 and others and since
\nthe present Suit No. 3656\/81 stood instituted on 11.12.1981 it was within
\ntime of twelve years. According to the trial court, in view of the judgment of
\nthe trial court in the suit instituted by Iyengar bearing No. 79\/49, K.S. Setlur
\nwas in possession of the suit property till December, 1961 and that the
\ndefendants had wrongly entered into possession in April\/ September, 1970.
\nOn the merits, the trial court held that since the High Court had declared vide
\nits judgment dated 14.8.1981 in RSA No. 545\/73 that Setlur was in
\npossession from 1946 to 1963 he had become owner by adverse possession
\nand since Setlur was dispossessed in 1970 the present Suit No. 3656\/81 was
\nwell within limitation. According to the trial court, in view of the judgment
\nof the High Court dated 14.8.1981 in RSA No. 545\/73, defendant No. 1,
\nNarsimha Setty, did not get a valid title in respect of the suit lands.
\nAccording to the trial court, in view of the said judgment of the High Court
\ndated 14.8.1981 in RSA No. 545\/73 there was no merit in the contention
\nadvanced on behalf of the defendants that the said judgment of the High
\nCourt dated 14.8.1981 was not binding on them since the High Court had
\ndeclared that K.S. Setlur had possessory title over the suit lands and in view
\nof the said findings the defendants Narasimha Setty and others had failed to
\nprove that they had derived valid title to the said suit lands under the above
\ntwo sale deeds dated 21.5.1970 and 7.9.1970 from the LRs. of  Iyengar. The
\ntrial court further observed that K.S. Setlur had instituted the said suit for
\ndeclaration and permanent injunction in 1981. That Suit was amended by
\nK.S. Setlur as plaintiff alleged that he was in possession in 1970 and that
\nsubsequently the defendants had unlawfully entered into the suit lands. The
\nplaintiff accordingly amended the plaint. He sought possession. While
\nseeking possession, the plaintiff in his evidence stated that he was
\ndispossessed in 1970. According to the trial court, therefore, between 1946
\nand 1962-63, K.S. Setlur was in possession. He had possessory title. He was
\nin possession till 1970 when he was unlawfully dispossessed and in view of
\nthe judgment of the High Court dated 14.8.1981 possessory title in the suit
\nlands had vested in K.S. Setlur (plaintiff). In the circumstances, the trial
\ncourt decreed the suit in favour of the plaintiff. The trial court declared that
\nNarsimha Setty did not derive title from the LRs. of Iyengar under the above
\ntwo sale deeds dated 21.5.1970 and 7.9.1970.\n<\/p>\n
Aggrieved by the said decision of the trial court dated 11.10.1996, the
\nmatter was carried in appeal by the LRs. of Iyengar and their alienees to the
\nHigh Court under section 96 CPC vide RFA No. 672\/96. By the impugned
\njudgment dated 22.3.1999, the appeal filed by the defendants stood allowed
\nand the impugned judgment of the trial court was set aside. Hence this civil
\nappeal.\n<\/p>\n
As stated at the outset, the present civil appeal is filed by the LRs. of
\nthe deceased K.S. Setlur, the original plaintiff. This civil appeal arises out of
\nthe judgment of the High Court dated 22.3.1999 in RFA No. 672\/96 filed
\nunder section 96 CPC.\n<\/p>\n
It is urged on behalf of the appellants-plaintiff that the suit is based on
\nadverse possession. According to the appellants, Shyamala Raju was the
\ntenant of K.S. Setlur since deceased. According to the appellants, Shyamala
\nRaju had attorned the tenancy in 1946 in favour of K.S. Setlur. According to
\nthe appellants, Shyamala Raju had surrendered possession to K.S. Setlur on
\n23.4.1962. According to the appellant, the High Court had categorically
\ndeclared vide judgment dated 14.8.1981 in RSA No. 545\/73 that the
\npossessory title stood vested in K.S. Setlur. It is urged on behalf of the
\nappellants that Iyengar had also instituted a suit for permanent injunction
\nbeing Suit No. 79\/49 in which it has been held that Iyengar was not in
\npossession of the suit lands but he was certainly entitled to file a separate
\nsuit for declaration of his title. It was urged on behalf of the appellants that
\ndespite liberty being given to Iyengar to institute a separate suit for
\ndeclaration on title, neither Iyengar nor his LRs. ever instituted a suit on title
\nand, therefore, the possessory title found by the High Court vide judgment
\ndated 14.8.1981 in favour of K.S. Setlur cannot be allowed to be reopened
\nin the present proceedings. It was urged on behalf of the appellants that the
\ntrial court was right in coming to the conclusion that the possessory title
\nstood vested in K.S. Setlur. In this connection, reliance was placed on
\njudgment dated 14.8.1981 in RSA No. 545\/73. According to the appellants
\nthe LRs. of Iyengar, in the above circumstances, had lost their right to
\nrecover possession. In this connection, the appellants placed reliance on
\nSection 27 of the Limitation Act, 1963. It was urged on behalf of the
\nappellants that the impugned judgment is full of contradictions and
\ninconsistent findings. It was urged on behalf of the appellants that the matter
\nneeds to be remitted back since there are fundamental errors in the impugned
\njudgment.\n<\/p>\n
On the other hand, it is urged on behalf of the respondents-defendants
\nthat the trial court has failed to appreciate that the judgment of the High
\nCourt dated 14.8.1981 in RSA No. 545\/73 arose from proceedings\/ Suit No.
\n89\/63 filed by K.S. Setlur against his alleged tenant, Shyamala Raju. In that
\nsuit, the LRs. of K.S. Setlur were not made party defendants. According to
\nthe respondents, the present Suit No. 3656\/81 filed by K.S. Setlur was a title
\nsuit for a declaration that the LRs. of Iyengar had no right, title or interest in
\nthe suit lands and that they had no right to transfer\/ alienate the suit lands in
\nfavour of Narsimha Setty and others. According to the respondents, the trial
\ncourt has erred in treating the present suit as a suit based on adverse
\npossession. According to the respondents, the suit was based on title, it was
\nsubsequently amended falsely alleging that the plaintiffs were forcibly
\ndispossessed. According to the respondents, K.S. Setlur was in fact
\ndispossessed in 1953. According to the respondents, the trial court had erred
\nin holding that K.S. Setlur was dispossessed in 1969-70. According to the
\nrespondents, the trial court had erred in holding that the tenant’s possession
\nduring 1946 to 1963 was the plaintiff’s possession, which, according to the
\nrespondents, was a fundamental error in the judgment of the trial court.
\nAccording to the respondents, the judgment of the High Court dated
\n14.8.1981 was between K.S. Setlur and Shyamala Raju. In that proceedings,
\nLRs. of Iyengar were not party defendants and, therefore, the judgment of
\nthe High Court dated 14.8.1981 was not binding on the
\nrespondents. According to the respondents, the trial court had proceeded on
\nthe basis of judgment dated 14.8.1981 which was not binding on the
\nrespondents and even if it is assumed that the said judgment was binding on
\nthe respondents even then the trial court had erred in holding that possession
\nof Shyamala Raju was the possession of Setlur in reckoning the period of
\ntwelve years under Article 64 of the Limitation Act, 1963. It is urged on
\nbehalf of the respondents that even in the suit for permanent injunction
\ninstituted by Iyengar being Suit No. 79\/49 the trial court has held that, even
\nthough Shyamala Raju is found to be in possession, whether Shyamala Raju
\nwas a tenant of Iyengar or K.S. Setlur was not fairly established and,
\ntherefore, in none of the earlier proceedings it had been established that
\nShyamala Raju was cultivating as a tenant of K.S. Setlur or as a tenant of
\nIyengar. This question has never been conclusively decided and even if one
\nis to proceed on the basis that Shyamala Raju was a tenant of K.S. Setlur,
\nwill the tenant’s possession be taken into account in calculating  the period
\nof twelve years under Article 64 of the Limitation Act, 1963? These
\nquestions, according to the respondents, have not been answered by the trial
\ncourt.\n<\/p>\n
Section 27 of the Limitation Act, 1963 operates to extinguish the right
\nto property of a person who does not sue for its possession within the time
\nallowed by law. The right extinguished is the right which the lawful owner
\nhas and against whom a claim for adverse possession is made, therefore, the
\nplaintiff who makes a claim for adverse possession has to plead and prove
\nthe date on and from which he claims to be in exclusive, continuous and
\nundisturbed possession. The question whether possession is adverse or not is
\noften one of simple fact but it may also be a conclusion of law or a mixed
\nquestion of law and fact. The facts found must be accepted, but the
\nconclusion drawn from them, namely, ouster or adverse possession is a
\nquestion of law and has to be considered by the court.\n<\/p>\n
As stated, this civil appeal arises from the judgment of the High Court
\nin RFA No. 672\/96 filed by the original defendants under section 96 CPC.
\nThe impugned judgment, to say the least, is a bundle of confusion. It quotes
\ndepositions of witnesses as findings. It quotes findings of the courts below
\nwhich have been set aside by the High Court in the earlier round. It criticizes
\nthe findings given by the coordinate Bench of the High Court in the earlier
\nround of litigation. It does not answer the question of law which arises for
\ndetermination in this case. To quote an example, one of the main questions
\nwhich arises for determination in this case is whether the tenant’s possession
\ncould be treated as possession of the owner in computation of the period of
\ntwelve years under Article 64 of the Limitation Act, 1963. Similarly, as an
\nexample, the impugned judgment does not answer the question as to whether
\nthe decision of the High Court dated 14.8.1981 in RSA No. 545\/73 was at all
\nbinding on the LRs. of Iyengar\/ their alienees. Similarly, the impugned
\njudgment does not consider the effect of the judgment dated 10.11.1961
\nrendered by the trial court in Suit No. 94\/56 filed by K.S. Setlur against
\nIyengar inter alia for reconveyance in which the court below did not accept
\nthe contention of K.S. Setlur that the conveyance executed by Kalyana
\nSundram Iyer in favour of Iyengar was a benami transaction. Similarly, the
\nimpugned judgment has failed to consider the effect of the observations
\nmade by the civil court in the suit filed by Iyengar for permanent injunction
\nbearing Suit No. 79\/49 to the effect that though Shyamala Raju was in
\npossession and cultivation, whether he was a tenant under Iyengar or under
\nK.S. Setlur was not conclusively proved. Similarly, the impugned judgment
\nhas not at all considered the effect of the Iyengar or his LRs. not filing a suit
\non title despite being liberty given to them in the earlier Suit No. 79\/49. In
\nthe matter of adverse possession, the courts have to find out the plea taken
\nby the plaintiff in the plaint. In the plaint, the plaintiff who claims to be
\nowner by adverse possession has to plead actual possession. He has to plead
\nthe period and the date from which he claims to be in possession. The
\nplaintiff has to plead and prove that his possession was continuous,
\nexclusive and undisturbed to the knowledge of the real owner of the land. He
\nhas to show a hostile title. He has to communicate his hostility to the real
\nowner. None of these aspects have been considered by the High Court in its
\nimpugned judgment. As stated above, the impugned judgment is under
\nsection 96 CPC, it is not a judgment under section 100 CPC. As stated
\nabove, adverse possession or ouster is an inference to be drawn from the
\nfacts proved that work is of the first appellate court.\n<\/p>\n
It is true that the litigation is pending for the last several years,
\nhowever, we are in agreement with the contention advanced on behalf of the
\nappellants that there are serious errors in the impugned judgment which
\nwarrants interference under Article 136 of the Constitution of India. We do
\nnot wish to express any opinion on the merits of the matter. Reasoning, if
\nany, given hereinabove, should not be read as our conclusion on merits.\n<\/p>\n
For the reasons indicated above, without expressing any opinion on
\nthe merits of the case, we allow this civil appeal, set aside the impugned
\njudgment of the High Court dated 22.3.1999 in RFA No. 672\/96 and we
\nremit the case back to the High Court to decide the said RFA No. 672\/96
\nde novo in accordance with law.\n<\/p>\n
Since the above proceedings are pending from 1981 we request the
\nHigh Court to expeditiously hear and dispose of the appeal bearing No. RFA
\n672\/96, preferably within three months from the receipt of this judgment.
\nOffice is directed to send back records and proceedings to the High Court
\nexpeditiously.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Krishnamurthy S. Setlur Dead By … vs O. V. Narasimha Setty & Ors on 23 February, 2007 Author: Kapadia Bench: Dr. Arijit Pasayat, S. H. Kapadia CASE NO.: Appeal (civil) 5079 of 2000 PETITIONER: Krishnamurthy S. Setlur Dead by LRs RESPONDENT: O. V. Narasimha Setty & Ors DATE OF JUDGMENT: 23\/02\/2007 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-130282","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nKrishnamurthy S. Setlur Dead By ... vs O. V. 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