Judgment:
R IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE20H DAY OF JULY, 2017 :BEFORE: THE HON’BLE MR.JUSTICE K.N. PHANEENDRA R.S.A. No.209/2013 (RES) BETWEEN: SHRI. DURGAPPA, SINCE DEAD REP. BY HIS LR’S1A) KARIAMMA W/O LATE DURGAPPA, 1(B) DURGAPPA S/O LATE DURGAPPA, AGED ABOUT70YEARS, OCC: AGRICULTURE, R/O HOSAKUNDAVADA, TQ & DIST, DAVANGERE. AGED ABOUT55YEARS, OCC: AGRICULTURE, R/O HOSAKUNDAVADA, TQ & DIST, DAVANGERE. AGED ABOUT46YEARS, OCC: AGRICULTURE, R/O HOSAKUNDAVADA, TQ & DIST, DAVANGERE. AGED ABOUT53YEARS, OCC: AGRICULTURE, R/O HERITHOGALERI, TQ & DIST, DAVANAGERE. 1(C) HANUMAPPA W/O BASAPPA, 1(D) BASAPPA S/O LATE DURGAPPA, 1(E) MANJAMA W/O LINGAPPA, 1(F) RENUKAMMA W/O THIPPESHI, AGED ABOUT43YEARS, OCC: AGRICULTURE R/O SIRMAGUNDANAHALLI, TQ & DIST, DAVANGERE. 2 AGED ABOUT40YEARS, OCC: AGRICULTURE, R/O ICHAGATTA, TQ & DIST, DAVANGERE.-. APPELLANTS NAGAMMA, W/O LATE GURGAPPA, AGED MAJOR, OCC: HOUSEHOLD, R/O HASAKUNDAVA VILLAGE, DIST. DAVANAGERE. DEAD R-2,3(A-D), R-4 & 7 ARE LR’S OF R-1. SMT. RATNAMMA, W/O LATE DURGAPPA, AGED MAJOR, OCC: HOUSEHOLD, R/O HASAKUNDAVA VILLAGE, DIST. DAVANAGERE. (BY SMT. SARITHA KULKARNI, ADV.) AND:
1.
2.
3. 3(A) RAMESH S/O LATE NAGAPPA, 3(B) ANANDA S/O LATE NAGAPPA, 3(C) PRASANNA S/O LATE NAGAPPA, 3(D) INDRAMMA W/O RAMESH, AGED28YEARS, OCC: AGRICULTURE COOLIE, R/O SIDDIAHANNA KOTI, JAGGALUR TQ, DIST. DAVANGERE. AGED ABOUT24YEARS, OCC: AGRICULTURE COOLIE. ALL R/O KAVALAHALLI, HARAPANAHALLI TQ., DIST.DAVANGERE. SMT. DURGAMMA SINCE DEAD REP. BY LR’S. AGED ABOUT30YEARS, OCC: AGRICULTURE COOLIE. AGED ABOUT26YEARS, OCC: AGRICULTURE COOLIE.
4. 5.
6.
7. 3 SMT. HALAMMA W/O HANUMANTHAPPA, AGED45YEARS, OCC: AGRICULTURE, R/O KADAJJI, DIST. DAVANGERE. A. K. DEVENDRAPPA, S/O DODDA DURGAPPA, AGED39 OCC: TEACHER, R/O HASAKUNDAVA VILLAGE, DIST . DEVANGERE. SMT. SHANTHAMMA, W/O HUCHENAGAPPA, AGED35YEARS, OCC: AGRICULTURE COOLIE, R/O BEVANAHALLI, HARPANAHALLI, DIST. DAVANGERE. THIRTHAPPA W/O LATE DURGAPPA, S/O DODDA DURGAPPA, AGED28YEARS, OCC: AGRICULTURE, R/O HASAKUNDAVA VILLAGE, DIST. DAVANGERE. RESPONDENTS - (BY SRI. REVANNA BELLARY, ADV. FOR R-1, R-2, R-3 [A-D]. AND R-4 TO R-7 ARE LR’S OF R-1 V.O.D1402.2017) THIS REGULAR SECOND APPEAL IS FILED UNDER100OF CPC., AGAINST THE
JUDGMENT& DECREE DTD1711.2012 PASSED IN R.A.No.114/2002 ON THE FILE OF I ADDITIONAL SENIOR CIVIL JUDGE, DAVANGERE, ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGMENTAND DECREE DTD1604.2002 PASSED IN OS.NO.117/97 ON THE FILE OF ADDITIONAL CIVIL JUDGE (JR.DN.), DAVANGERE. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENTON2905.2017, COMING ON FOR ‘PRONOUNCEMENT OF
JUDGMENT’, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
4.
JUDGMENTThe appellants are the legal representatives of the original defendant by name Durgappa son of Hanumappa. Plaintiff’s name is also Durgappa son of Durgavva. He claims to be the adopted son of Ningappa in OS No.117/1997. The plaintiff Durgappa filed a suit for following reliefs: (i) for recovery of possession of the suit schedule property measuring 31 guntas in survey No.25/8P situated in Kundawada village, Davangere Taluk and (ii) (iii) for cancellation of revenue entries made in the name of the defendants and for mesne profits and for such other reliefs against the defendant. The original defendant Durgappa appeared before the trial Court and contested the suit. The trial Court dismissed the suit and being aggrieved by the same, the plaintiff preferred an appeal before the I Addl. Senior Civil Judge at Davangere in RA No.114/2002. The said court reversed the findings of the trial Court 5 and partially decreed the suit of the plaintiff granting relief of recovery of possession against the defendant. The defendant preferred an RSA in No.2763/2006. This Court on consideration of the materials on record set aside the orders passed by the first appellate court and remitted the matter for fresh disposal with certain observations. After remand, again the said RA No.117/2002 was re-heard by the first appellate court and vide judgment dated 17.11.2012, the first appellate court has again allowed the appeal and set aside the judgment of the trial Court in OS No.117/1997 dated 16.4.2002 and decreed the suit of the plaintiff for recovery of possession, however, dismissed the suit for remaining prayers. Again being aggrieved by the said judgment, the present RSA is preferred by the aggrieved defendant. 6 2. This court after hearing the parties framed the following substantial questions of law for consideration: (1) Whether the lower appellate court was justified in holding that the suit of the plaintiff does not come under the ambit of Section 6 of the Specific Relief Act?. (2) Whether the lower appellate court was justified in allowing the appeal solely relying upon Ex.P2, a Will, when the same was not proved?. (3) Whether the courts below were justified in relying on Ex.P3, the re-grant order with the survey No.25/8P measuring 1 acre 22 guntas was re-granted the plaintiff and Kariyavva?. jointly to In order to answer the above said three substantial questions of law it is just and necessary to have the brief factual aspects of the case of the plaintiff and defendant, as per their pleadings, and as to what happened before the trial Court and the first appellate court and how the courts have dealt with the case of the parties. 7 3. The plaintiff Durgappa (respondent herein) has filed a suit for recovery of possession of the suit schedule property i.e., to the extent of 31 guntas in Survey No.25/8P of Kundawada village of Davanagere Taluk out of 1 acre 22 guntas. The plaintiff has claimed that he is the adopted son of Ningappa r/o. Kundawada. Ningappa and his wife Kariyawwa had no issues. Hence, they have taken the plaintiff in adoption as per the custom prevailing in their community when the plaintiff was aged 10 years. The said Ningappa and Kariyawwa were enjoying the above land which is an inam land (precisely the suit schedule property) by performing begaar duties as assigned by the Government. It is his further case that, during the life time of Ningappa, he had executed a registered Will dated 16.11.1968 bequeathing the entire Survey No.25/8P which is the begaar inam in favour of the plaintiff and also assigned begaar duty to the plaintiff and the plaintiff also continued to perform the said duty. 8 4. It is the further case of the plaintiff that the said Ningappa died in the year 1970 and he has succeeded to the said Ningappa. The plaintiff and his adoptive mother Kariyawwa had been cultivating the said inam land by paying kandayam etc., to the Government. The said land subsequently on 29.01.1980 was re- granted jointly in the name of the plaintiff and his adoptive mother, mutation was also accepted in their names. However, the plaintiff had been cultivating the entire extent of the land i.e., 1 acre 22 guntas and he was taking care of his adoptive mother Kariyawwa who died intestate on 12.8.1991.
5. It is the further case of the plaintiff that the defendant taking advantage of the old age of Kariyawwa has created and concocted a bogus Will claiming that the said Kariyawwa had executed a Will in his favour to the extent of her share, that is 31 guntas (suit schedule property) and he got the revenue entries on the basis of such bogus Will. The entries in the revenue records came to the knowledge of the plaintiff in the year 1996. On the basis of the 9 illegal entry in the revenue records, the defendant has forcibly entered into the possession of the suit land to the extent of 31 guntas during the year 1996. In view of the above said facts and circumstances, the plaintiff has filed the suit against the defendant.
6. The original defendant put in appearance by virtue of the summons issued by the Court and he contested the suit by filing written statement.
7. The defendant in his written statement has denied the allegations made by the plaintiff that he is the adoptive son of one Ningappa. It is also denied that the said Ningappa has executed a Will in favour of the plaintiff bequeathing the entire land in Sy. No.25/8P on 16.11.1968 and he has also denied that after the death of Ningappa, his wife and plaintiff continued to live together and the entire land being cultivated by the plaintiff. However, it is admitted by the defendant that the land in Sy. No.25/8P has been granted, which is a begaar inam in favour of said 10 Kariavva and also the plaintiff Durgappa, jointly.
8. It is the further case of the defendant that the plaintiff actually is the son of one Durgavva who was a kept mistress. Therefore, the plaintiff could not have been given in adoption in favour of the said Ningappa or Kariavva. It is further contended that the plaintiff is the sister’s son of the defendant’s father and is residing in the same village. Plaintiff and the said Kariavva were granted with land in Sy. No.25/8P jointly to an extent of 1 acre 22 guntas, but Kariavva had been exclusively in possession and enjoyment of Northern 31 guntas after the death of her husband Ningappa. It is also admitted that the plaintiff has been in possession and enjoyment of the remaining 31 guntas in the same survey number on the Southern side. Kariavva became the absolute owner in possession and enjoyment of the suit schedule property which measures 31 guntas of Northern side in Sy. No.25/8P. 11 9. It is the further case of the defendant that deceased Kariavva having no issues fostered the defendant as her son and Kariavva lived along with the defendant and due to the love and affection she executed a registered Will in favour of the defendant on 26.09.1983 bequeathing her half right in Sy. No.25/8P out of 1 acre 22 guntas. The said Kariavva died on 12.08.1991 leaving the defendant as her sole legatee under the Will. After the death of Kariavva the defendant has got mutated his name in all the revenue entries and he has taken over possession of the suit schedule property and he has been in possession and enjoyment of the said land after the death of the said Kariavva.
10. It is contended that the plaintiff was never in possession and enjoyment of the suit schedule property and cultivated the same. It is also contended that the said Ningappa had no right to execute any Will in favour of the plaintiff much prior to the alleged grant in favour of the plaintiff and as well as Kariavva. The said Will is a concocted one and did 12 not create any right, title and interest in favour of the plaintiff. Hence he pleaded for dismissal of the suit.
11. On the basis of the above said rival contentions, the trial Court has framed the following issues.
1) Whether the defendant proves that there was any blood relationship with him and the deceased Kariyavva?.
2) Whether defendant proves that deceased Kariyavva has executed a registered Will Dt:
26. 09/1983 bequeathing her half share in Sy. No.25/8 totally measuring 1 acre 22 guntas in his favour in suit schedule property and he is in possession and enjoyment of the same measuring 31 guntas as its absolute owner?.
3) Whether the plaintiff proves that all along deceased Kariyavva and her husband Ningappa were residing with him?.
4) Whether the plaintiff proves that deceased Ningappa has executed a registered Will Dt:
16. 11/1968 bequeathing him inam land Sy. No.25/8P in his favour?.
5) Whether plaintiff further proves that Ningappa, husband of deceased Kariyavva had taken him in adoption?. 13
6) Whether plaintiff proves that after the death of Ningappa the said Inam Land was regranted jointly in favour of the plaintiff and his adoptive mother Kariyavva on 29/10/1980?.
7) Whether the plaintiff further proves that he was in actual possession and cultivation of suit land even after the death of Kariyavva?.
8) Whether the plaintiff further proves that the defendant illegally and forcibly took the possession of the suit land six months prior to the filing of this suit?.
9) Whether the plaintiff is entitled for the relief of possession and mesne profits?.
10) What order or decree?.
12. The plaintiff in order to prove his case has examined three witnesses as PWs.1 to 3. P.W.1 is the power of attorney holder of the plaintiff. The plaintiff got marked eight documents as per Exs.P.1 to P.8. On the side of the defendant, the defendant got himself examined as DW1 and got marked Exs.D1 and D2. The trial Court after evaluating the entire oral and documentary evidence on record had given findings on the issues 1 to 5 and 9 in the negative and issues 6 to 8 in the affirmative and finally dismissed 14 the suit of the plaintiff.
13. Aggrieved by the said judgment the plaintiff had preferred an appeal in R.A. No.114/2002 before the learned First Additional Senior Civil Judge, Davanagere. The first appellate Court initially passed the judgment on 20.07.2006 wherein the appeal was allowed and plaintiff’s suit was decreed by setting aside the trial Court’s judgment. Consequently, the first appellate Court had directed the defendant to deliver possession of the suit property to the plaintiff within three months from that date and also ordered for separate enquiry with regard to the mesne profits. The suit was dismissed so far as the relief of cancellation of the revenue entries. Against the said order the defendant had preferred a Regular Second Appeal in R.S.A. No.2763/2006. This Court set aside the judgment of the first appellate Court vide judgment dated 04.06.2012. This Court found that the first appellate Court had not elaborately discussed about the application of Section 6 of the Specific Relief 15 Act (for short ‘Act’) and not given any specific finding as to whether the suit filed by the plaintiff falls u/S6of the Act and that on which date the plaintiff was dispossessed and also with regard to the claim over the property on the basis of the Will and also on the basis of the grant and adoption. Therefore, this Court remitted the matter with a direction to the first appellate Court to decide the question as to: Whether the suit instituted was u/S6of the Specific Relief Act, on elaborate discussion of the material placed on record and also to consider as to whether the appeal filed is competent in case it holds that the suit is u/S6of the Specific Relief Act?.
14. After remand once again the matter was heard by the first appellate Court in detail. On the basis of the points as directed by this Court the first appellate Court, in fact, formulated the following points for consideration. 16
1) Whether the plaintiff proves that he has become the absolute owner of the suit property by virtue of the Will Dt:
16. 11/1968 and also by the Regrant Order Dt:29/10/1980?.
2) Whether he further proves his alleged illegal and forcible dispossession from the suit property by the defendant?.
3) If so, whether he is entitled to the relief of possession of the suit property from the defendant as prayed for?.
4) Whether the defendant proves his lawful possession of the suit property by virtue of the Will Dt:
26. 09.1983 by the deceased Kariyavva?.
5) Whether the suit of the plaintiff comes within the ambit of the provisions of Section 6 of the Specific Relief Act?.
6) Whether the impugned judgment and decree of the trial court calls for interference by this Court?.
7) What order or decree?. - - - 15. After giving finding to points 1 to 3 in the affirmative and points 4 and 5 in the negative ultimately again found that, the trial Court judgment deserved to be set aside and accordingly set aside the judgment and granted the decree in favour of the plaintiff again directing the defendant to hand over the vacant possession of the suit schedule property within three months from the date of the order. So far as the other claim of the plaintiff is concerned, suit was 17 dismissed.
16. So far as the issues framed by the trial Court casting burden on the defendant are concerned, have been held in the negative by the trial Court itself, i.e., as noted above, issue No.2 the burden on the defendant to prove execution of the registered Will by Kariavva in his favour on 26.09.1993 bequeathing her share in Sy. No.25/8P in favour of the defendant and he is in possession and enjoyment of the same measuring 31 guntas as its absolute owner and issue No.1 as to, whether the plaintiff establishes the relation between himself and the deceased Kariavva, holding issue No.6 was also answered in favour of plaintiff that entire extent of land was was granted jointly in favour of plaintiff and deceased Kariavva. These three issues were held against the defendant and the defendant in the original suit has not preferred any appeal against the said judgment, in so far as those findings are concerned. The findings of the trial Court on the above said issues are binding 18 and there is no need to consider the said aspects once again by this Court.
17. The first appellate Court, in fact, has considered in detail and held that the suit of the plaintiff does not fall u/S6of the Act and further held that the plaintiff has established the Will executed by Ningappa and thereby acquired right, title and interest over the suit schedule property. Further, the Court has also observed that Sy. No.25/8P totally measuring 1 acre 22 guntas was granted jointly in favour of the deceased Kariavva and as well as the plaintiff and the defendant has dispossessed the plaintiff illegally in the year 1996. Therefore, for the above said reasons the Court has decreed the suit of the plaintiff.
18. Now in the above said background, on the basis of the pleadings and evidence let in by the parties, this Court has to examine whether the first appellate Court has committed any legal error in giving such finding. Therefore, it is just and necessary to take up the substantial questions of law framed by this Court 19 one by one for consideration.
1. Whether the lower appellate court was justified in holding that the suit of the plaintiff does not come under the ambit of Section 6 of the Specific Relief Act?.
19. The learned counsel for the appellant has strenuously contended before the Court that on reading of the plaint averments and also the evidence adduced by the parties, it is very clear that, the plaintiff has filed the suit within six months from the date of his dispossession and further he has paid the Court fee under Section 28 of the Karnataka Court Fees and Suit Valuation Act and further lead the evidence specifically narrating that he has been dispossessed about six months back and the suit is filed within six months. Therefore, on a meaningful reading of the plaint averments, particularly paragraph 7 of the plaint, it is clear that the plaintiff has filed a suit under Section 6 of the Act. When Section 6 of the Act is pressed into service, if the suit of the plaintiff is summarily disposed of by the trial 20 Court, no appeal lies against such orders. As per sub- section (3) of Section 6 of the Act “no appeal shall lie from any order or decree passed in any suit instituted under this Section, nor shall any review of any such order or decree be allowed”. The first appellate Court has wrongly concluded that the suit does not fall under Section 6 of the Act. Therefore, the order of the first appellate Court deserves to be set aside restoring the dismissal decree passed by the trial Court. Secondly, it is contended that Court fee paid u/S28and 43 of the K.C.F. & S.V. Act, by the plaintiff also clearly indicates that the plaintiff intended to file the suit u/S6of the Specific Relief Act.
20. Countering the above said arguments, the learned counsel for the respondent submitted before the Court that the Court has to look into the entire pleadings of the parties and also the evidence adduced in order to come to a conclusion whether the suit filed by the plaintiff falls under Section 6 of the 21 Act. He further draws the attention of the Court to sub-section (4) of Section 6 of the Act which says that “nothing in the section shall bar any person from suing to establish his title to such property and to recover possession thereof”. Therefore, even though there are some averments in the plaint that the plaintiff has filed the suit within six months from the date of dispossession nevertheless he has also pleaded as to how he had acquired the suit schedule property and based his possession on the title, he acquired. Further, he also contended about the defendant’s title stating that the defendant has no right, title or interest over the property and he created the title in himself by concocting the will alleged to have been executed by one Kariyawwa. The trial Court has also framed several issues apart from the possessary relief claimed by the plaintiff. Therefore, on over all reading of the entire material on record, it goes without saying that the suit of the plaintiff falls under sub-section (4) of Section 6 of the Act. Therefore, the appellate Court is right in holding that 22 the suit of the plaintiff does not fall under Section 6 of the Act.
21. In the above said context, the learned counsel have relied on various decisions. In my opinion, it is just and necessary to have a brief perusal of those decisions before adverting to the factual aspects of this case.
22. In the decision reported in 2012 AIAR (Civil) 809 between I.T.C. Limited v. Adarsh Co.op. Housing Soc. Ltd.the Apex Court has observed that: “Section 6 of the Specific Relief Act, 1963:- suit for recovery of possession; in fact in a suit under Section 6 of the Act, the only question that has to be determined by the Court is whether the plaintiff was in possession of the property in question and whether he had been illegally dispossessed therefrom on any date within six months prior to the filing of the suit. In such a suit, entitlement of the plaintiff to recover possession of the property from which he claims to have been illegally dispossessed has to be adjudicated independently of the question of title that may be set up by the defendant in such a suit. As the question of possession and illegal dispossession therefrom is the only issue which germane to the suit under Section 6, a proceedings thereunder, naturally, would partake the character of a summary proceedings against which the remedy 23 by way of appeal or review has been specifically excluded by sub-section (3) of Section 6 of the Act. 22(a). The above said ruling clearly indicates that if the suit is filed specifically under Section 6 of the Act, the Court is not expected to consider any other point except the previous possession of the plaintiff and dispossession thereon by the defendant and that, the suit is filed within six months from the date of dispossession, irrespective of the title of the parties. 22(b). In AIR1972Allahabad 418 between Chunni and another vs. Sullahar and another at paragraph 5, the Allahabad High Court has observed that: “if the suit is dismissed, u/S6of the Specific Relief Act, the dispossessed plaintiff can invoke sub- section(4) of Section 6, as the said provision specifically makes it clear that such a decree cannot bar a fresh suit for recovery of possession. It will depend upon the facts and circumstances of each case. Where the plaintiff is dissatisfied with a decree, he can immediately institute a suit for declaration of this title and also claim available consequential relief of possession once again”. This ruling clearly discloses, as argued by the learned counsel for the appellant, that, when the suit of the plaintiff is dismissed by the trial Court, he ought to have filed a suit for declaration and possession as no 24 appeal lies against the summary proceedings held by the trial Court. But this argument depends upon whether the suit falls exactly under Section 6 of the Act. 22(c). The learned counsel also relied upon a ruling reported in AIR2008SC2033between Anathula Sudhakar v. P. Buchi Reddy(Dead) by L.Rs. and Ors., wherein the Apex Court has observed "Where a cloud is raised over plaintiff’s title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff’s title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Therefore, the suit is not maintainable for mere possession without declaration when the title of the plaintiff and possession is denied by the defendant”. This ruling also has to be tested by the Court on the basis of the pleadings and what exactly the contention of the plaintiff and defendant is.
23. Countering the above said rulings, the learned counsel for the respondent also relied upon certain rulings in this regard. 25 In the case law reported in AIR2016Supreme Court 2250 between Muddasani Venkata Narsaiah(d) th. Lrs v. Muddasani Sarojana, the Apex Court has observed: is maintainable without prayer “under the Specific Relief Act, Section 6:- whether the suit for declaration of title. The suit filed by plaintiff for possession based on title on strength of sale deed executed in her favour by sole surviving sister/heir of one of the deceased sons of deceased owner, main plea of defendant was that she was adopted daughter of deceased widow of deceased owner who was in possession of property as widow’s estate before it was sold to plaintiff. Defendant unable to prove adoption, plea does not prima facie put any cloud over plaintiff’s title. Suit for possession simplicitor without is maintainable”. declaration of title In another ruling reported in AIR2012Supreme Court 1727 between Maria Margarida Sequeria Fernandes and Ors V. Erasmo Jack De Sequeria(dead) though L.Rs. the Apex Court has observed that for “Specific Relief Act-Section 6:- Suit possession by person other than the title holder- In an action for recovery of possession of immovable property or for protecting possession thereof, upon the legal title to the property being established, the possession or occupation of the property by a person other than the holder of the legal title will be presumed to have been under and in subordination to the legal title and it will be for the person resisting a claim for 26 recovery of possession or claiming a right to continue in possession, to establish that he has such a right. To put it differently, wherever pleadings and documents establish title to a particular property and possession is in question, it will be for the person in possession to give sufficiently detailed pleadings, particulars and documents to support his claim in order to continue in possession.” 24. The sum and substance of the above rulings are that, the plaintiff need not always seek for declaration of his title, but he can plead the sources of his title and establish that he was in possession of the property on the basis of such ownership and subsequently, he was dispossessed by the defendant. In such an eventuality, he can recover the possession from the defendant without seeking the relief of declaration. On the other hand, it is the burden on the defendant to show that he has got independent separate right to continue in possession of such property and that, the plaintiff is not entitled for recovery of possession of the property.
25. In the above backdrop before adverting to the facts of this case it is also just and necessary to have a cursory look at Section 6 of the Specific Relief Act 27 which reads as follows: “6. Suit by person dispossessed of immovable property (1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such a suit; (2) No suit under this section shall be brought – (a) after the expiry of six months from the date of dispossession; or (b) against the Government. (3) No appeal shall lie from any order or decree passed in any suit instituted under this Section, nor shall any review of any such order or decree be allowed; (4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.” - - - 26. A careful perusal of Section 6 of the Act in the light of the above said rulings, clearly shows that the said Section provides a special, summary and speedy remedy to a person in possession of immovable property whatever his title be thereto, to recover such possession from another who had illegally and without consent ousted the plaintiff there-from without due process of law. The policy which underlines Sec. 6 of the Act is to discourage the persons, from taking the law to their own hands and also dispossessing by force any person in possession of a property. The law will 28 not save a person to be of his own judge, and will not allow him to take possession of the land except by legal process. The proper course for a party who is out of possession is to file a suit immediately within six months from the date of his dispossession for ejectment and recover his possession. When a person in possession has been dispossessed otherwise than by due process of law, he must have a immediate remedy. Therefore Sec. 6 of the Act is concentrated with regard to the speedy remedy.
27. In so far as the title is concerned, while dealing u/S6of the Act, the Court need not go into the details of the title when the suit is based only on previous possession, whether legal or illegal. The possession has to be restored unless the said possession is recovered by the lawful owner or who is having better title by means of due process of law. The proof of previous possession and dispossession of the plaintiff is the only point that has to be considered by the Court. In normal manifestation though ownership is 29 united with possession, the owner of a property usually has a possessory right, possession may, however, be transferred without testing the ownership, by means of other legal modes like lease, mortgage, licence or permissive possession. Such possessions are to be protected from person who gave such possession by means of above said modes from dispossessing the person in possession without due process of law. A person in long, settled uninterrupted possession should also not be dispossessed without due process of law though the adverse party may be a true owner or having better title over the property.
28. Another policy underlying in the above said provision is that, the suit has to be filed within six months from the date of such dispossession. If the suit is mainly on the ground of dispossession without the consent of the person who is in possession or without due process of law then only such suits will fall u/S6of the Act. If only possession is claimed on 30 the basis of dispossession by the defendant and the parties and the Court have treated the said suit u/S6and decided the only question of possession of the property, then only the rigor of sub clause 3 of Sec. 6 of the Act will come into play, i.e., against such decrees passed by the Court u/S6no appeal shall lie.
29. The above said provision if distinguishingly also under sub Clause 4 gives a remedy to the person even to claim relief of possession of the property by establishing his title to such property. Therefore, Sec. 4 almost runs like an exception to Sec. 6(1) and (2) of the Act. If a person not only bases his dispossession on the basis of his earlier possession for recovery of possession, but he also relies upon his title for the purpose of suing the defendant and to recover possession thereof, then u/S6sub clause 4, he can recover possession even if he fails u/S61) and (2) of the Act.
30. In this background to arrive at a conclusion it is 31 just and necessary to look into the whole case to ascertain, as to how the case of the parties was understood by them by way of their pleadings, how they proceeded in the trial and what evidence they adduced, with what intention and as to how the trial Court has treated the suit of the plaintiff and the plea of the defendant. The court also has to understand whether the plaintiff has tried to trace his possession only on his previous possession or by means of establishing his title. If so, how the suit should be treated. Further, with what idea the trial Court has framed the contentious issues understanding the pleadings of the parties and what findings have been given by the Court are all the important aspects that have to be considered by the Court in this regard. Therefore, it is just and necessary to fall back upon the pleadings, evidence and judgment of the trial Court and as well as the appellate Court, in order to find out whether the suit really falls within the four corners of Sec. 6(1)(2) or it falls u/S64) of the Act.
31. As I have already narrated, though the plaintiff 32 has pleaded his dispossession for recovery of possession of the property he traces his possession on the basis of his adoption to one Ningappa who is said to be erstwhile owner of the said property. He also relies upon the grant order made in his favour and as well as in favour of Kariavva jointly. He also bases his continued possession on the basis of Will alleged to have been executed by Ningappa. Plaintiff has also taken up a contention about the allegation made by the defendant as to how the defendant has clandestinely claimed the suit schedule property and denied the source of title of the defendant and his lawful possession over the property. Therefore, it is crystal clear that though the suit is for recovery of possession the plaintiff has traced his possession on the basis of his title and thereupon pleaded dispossession by the defendant and as such sought recovery of possession.
32. In fact, the defendant also did not lag-behind. 33 He also denied the title and put the plaintiff to prove his title and dispossession. It is not only denying the case of the plaintiff, defendant has also set up a counter title on himself. In fact, he pleaded that he is the blood relative of the deceased Kariavva in whose favour the suit schedule property is alleged to have been granted. He also pleaded that the said deceased Kariavva executed a registered Will on 26.09.1983 bequeathing the suit schedule property in favour of the defendant. He also pleaded, she died in the year 1991 and from that date he has been in possession and enjoyment of the suit schedule property and also pleaded that the plaintiff had never been in possession and enjoyment of the said portion.
33. The plaintiff and defendants have lead evidence. The plaintiff has not only lead evidence with regard to his dispossession but he has also made all attempts to prove his adoption to Ningappa and also his title on the basis of the will executed by Ningappa and also on the basis of the joint grant made by the Government 34 in his favour and deceased Kariavva. The cross- examination of the plaintiff has also been adverted-to denying the above said plea taken up by the plaintiff. The defendant also lead evidence in support of his pleadings by producing the alleged will executed by Kariavva and also he lead evidence that he is the adopted son of Kariavva, after the death of her husband Ningappa and thereby he claimed the ownership over the property and possession over the property after the death of Kariavva. Therefore, by means of the above said pleadings and the evidence it is crystal clear that the parties never intended to treat the suit as the one u/S61) and (2) of the Act but treated the suit u/S64) of the Act as the plaintiff wanted to establish his possession on the basis of his title and thereafter dispossession by the defendant.
34. The trial Court, as noted supra, has framed as many as eight issues. If meticulously the issues framed are understood, they not only refer to the earlier possession of the plaintiff and dispossession by 35 the defendant but also the burden cast upon the plaintiff to prove his title on the basis of the will executed by Ningappa and as well as the grant made in favour of the plaintiff jointly with Kariavva. The court also casts burden on the defendant with reference to his source of title on the basis of Will executed by Kariavva and his possession thereof after the death of the said Kariavva. Therefore, for all practical purposes, the Court has also treated the suit by means of framing the above said issues as one filed for recovery of possession on the basis of the title of the plaintiff. Therefore, by any stretch of imagination it cannot be said that it is a suit which exclusively falls u/S61)(2) of the Act.
35. Now coming to the other important aspect, whether the plaintiff has to be non-suited, as no declaratory relief has been claimed. It is straight away covered by the decisions noted above. Of course, the appellant has relied upon the apex court decision as noted supra in AIR2008SC2033and also 36 AIR1990(3) KLJ231(Girijavva and Basavva). In both these cases the Court has held that, if there is a serious dispute with regard to the title of the plaintiff taken by the defendant then the suit without a relief declaration of title is not maintainable. However, in a decision reported in AIR2016SC2250noted supra if suppose the defendant’s plea is very casual in nature and is unable to prove his defence taken up by him with regard to the title and proving his case, then it does not amount to prima facie casting cloud over the title of the plaintiff. In such an eventuality, the suit is maintainable even without declaratory relief. In this background the Court has to understand again the case of the plaintiff and the defendants.
36. The defendant has specifically taken up a contention in the written statement that he is the adopted son of one of the co-owners of the property, i.e., by name Kariavva. He has also taken up a contention that the said Kariavva has executed a Will in favour of the defendant on 26.09.1983. The trial 37 Court has framed issue Nos.1 and 2 casting burden on the defendant to establish this aspect. The defendant has examined himself as DW1. He has not produced any evidence in order to Prove Ex.D.1, the certified copy of the Will alleged to have been executed by Kariavva, except producing Ex.D.1, which is a certified copy of the Will. He never made any attempt to examine any of the attesting witnesses to the Will. He has also not produced any material to show that from 1991 after the death of Kariavva he actually physically occupied the property of Kariavva. No RTC extracts have been produced before the Court to establish the possession of the defendant from 1991. Ex.D.2 is the only document produced to show the possession, which is a tax paid receipt of the year 1999. In fact, the Record Of Rights are the proper documents to prima facie show the possession over the property. Though it is stated that the mutation has been accepted in the name of the defendant, the same has not been produced before the Court by the defendant 38 nor he has relied upon the same.
37. The trial Court after considering the oral and documentary evidence on record has given a finding to issue Nos.1 and 2 in the negative holding that the defendant has not proved his relationship with Kariavva and the will alleged to have been executed by Kariavva and that the defendant has acquired any title or possession over the property after the death of the said Kariavva. This particular findings on issue Nos.1 and 2 though held against the defendant, the defendant has never chosen to question those findings by filing independent appeal before the competent Court nor he filed any cross objections when the appeal was filed by the plaintiff questioning the judgment and decree passed by the trial Court before the first appellate Court.
38. The above said circumstance, in fact, clearly attracts the principle laid down in the above said case (AIR2016SC2250. In the said case also the Supreme Court has made an observation on facts 39 that, the main plea taken by the defendant in that case was that she was the adopted daughter of Yashodha and the same had not been established before the trial Court or before the first appellate Court. Therefore, the Court held that there was no serious cloud on the title of the plaintiff so as to force him to seek the relief of declaration of title. In this case also the relationship between the defendant and the Kariavva is the main weapon used to establish the alleged will executed by Kariavva and the possession of the property by the defendant from 1991. Therefore, in my opinion, in this case also the defendant’s plea is virtually casual in nature and it did not affect the real title of the plaintiff on the basis of the joint grant made by the Government in favour of the plaintiff and the deceased Kariavva.
39. It is also worth noting here the defendant has, in fact, in his written statement and evidence categorically admitted that the suit schedule property, i.e., sy. No.25/8 measuring 1 acre 22 guntas in toto 40 was granted jointly in favour of the plaintiff and deceased Kariavva. Therefore, it cannot be said that the plaintiff has to be non-suited for want of relief of declaration. Therefore, the first appellate Court has not committed any serious legal error in holding that the suit does not fall u/S6of the Act negativing the contention of the defendant and that the suit of the plaintiff is not maintainable for want of declaration.
40. The next point raised is, the plaintiff has paid the Court fee u/S28of the Karnataka Court Fees & Suits Valuation Act, 1958 (for short KCF & SV Act). Section 28 refers to Sec. 9 of Specific Relief Act and Sec. 6 of the New Specific Relief Act corresponds to Sec. 9 of the old Act. Therefore, the learned counsel contended that the plaintiff really intended to treat his suit as one u/S6of the Specific Relief Act.
41. Of course the argument of the learned counsel is attractive in submitting that Sec. 28 of the KCF&SV Act refers to payment of Court fee in respect of a suit for possession of immovable property u/S9of the 41 Specific Relief Act and the fee shall be computed one half of the market value of the property or at Rs.1,000/- whichever is higher. Sec. 43 refers to suit to alter or cancel entry in revenue entries and certain suits in revenue Court. The said provision is not applicable so far as the present point for consideration is concerned.
42. Though, for the purpose of Court fee suit is valued u/S28of the KCF & SV Act, it is the fundamental principle of civil jurisprudence that Court fee has to be recovered on the basis of the plaint averments and not that the prayer to be understood on the basis of invocation of the provision by the party under the KCF&SV Act. Therefore, merely because Section 28 of the Court Fee Act is invoked by the plaintiff, it cannot be said that the suit falls under Section 6 of Specific Relief Act. Virtually now the suit has become a suit for recovery of possession on the basis of title as pleaded by the plaintiff. Therefore, the said ground though attractive is not legally and 42 factually sufficient to non suit the plaintiff stating that his suit falls u/S6(1) (2) of the Specific Relief Act.
43. Further added to the above, Sec. 28 of Court Fee Act does not speak only about Sec. 6(1)(2) of the Specific Relief Act. It is applicable to the entire Section. Therefore, if the suit falls u/S64) of the Specific Relief Act then also Sec. 28 of the Court Fees Act is applicable. Only the difference is u/S61)(2). Plaintiff can seek the relief of possession only on the basis of his earlier possession and dispossession by the defendant within six months prior to the date of filing of the suit. On the other hand, plaintiff can also seek recovery of possession u/S64) tracing his possession not only on the basis of his previous possession but also on the basis of his title. Therefore, it makes no difference if the suit falls u/S61)(2) or Sec. 4, in such an eventuality the invocation of Sec. 28 of the Court Fees Act will not in any manner convert the suit exclusively to one u/S436(1) and (2) of the Specific Relief Act.
44. Substantial Questions of Law Nos.2 and 3:
2. Whether the lower appellate court was justified in allowing the appeal solely relying upon Ex.P2, a Will, when the same was not proved?.
3. Whether the courts below was justified in relying on Ex.P3, the re-grant order with the survey No.25/8P measuring 1 acre 22 guntas was re-granted jointly to the plaintiff and Kariyavva?. As the above said two points are inter connected with each other and legal and factual aspects are to be discussed is almost similar to both the questions, they are taken together and discussed hereinbelow.
45. In order to trace the title of the plaintiff, the trial Court has relied upon Exs.P.2 and Exs.P.3. Ex.P.2 is the registered Will alleged to have been executed by the erstwhile owner of the property, i.e., Ningappa, the alleged adoptive father of the plaintiff. The first appellate Court has in fact formulated points for consideration which is already noted above. The point 44 for consideration at point No.1 casts burden on the plaintiff to prove that he became the absolute owner of the suit property by virtue of the Will dated 16.11.1968 and also by the regrant order dated 29.10.1980 and also the point for consideration at point No.4 refers to the defendant’s case of his proving lawful possession on the basis of a registered Will dated 26.09.1983 executed by deceased Kariavva. The point No.4 has been consistently held negative by the trial Court and the first appellate Court and the defendant has not questioned the same either before the first appellate Court by means of filing a separate appeal against the judgment and decree of the trial Court or filing any counter appeal, as I have already noted. Whether the plaintiff has established this Ex.P.2 will and the Ex.P.3 the grant order which has been jointly made in favour of the plaintiff and Kariavva and thereby plaintiff has acquired right, title and interest on the basis of said Will or the grant order, is to be examined.
46. The trial Court has observed that the plaintiff has 45 not examined any attesting witness to Ex.P.2 who were admittedly not alive as on the date of evidence of P.W.1. The said aspect has been considered by the appellate Court. The appellate Court has also gone wrong by holding that unless and until the first will is cancelled or set aside no second will with respect to same property cannot be accepted. In fact the appellate Court misdirected itself with reference to Ex.P.2 Will executed by Ningappa and the Will alleged to have been executed by Kariavva as per Ex.D.1 in favour of the defendant and those wills are executed by the same persons. I can understand if Ningappa has executed any subsequent will in favour of the defendant the said observation of the first appellate Court would have been correct.
47. Be that as it may, when the first appellate Court and the trial Court have definitely come to the conclusion that neither the scribe nor the attesting witness of Ex.P.2 is examined, the appellate Court could not have held that Ex.P.2 has been proved in 46 accordance with law: So far as the proof of the Will is concerned, as contemplated under Sec. 68 of the Indian Succession Act, as it is the legal requirement under the above said provision to examine any of the attesting witnesses for the purpose of proving a will. If the attesting witnesses are dead it will not absolve the plaintiff from proving the will by other means recognized under Sec. 65 of the Indian Succession Act, that is to say, the persons who had knowledge of the signature of the attestors, i.e., the legal heirs of the attestors, who can identify the signature of the attestors. By that mode, the proof of the will has to be established before the Court. Therefore, by any stretch of imagination it can be said that the plaintiff has proved the said will in accordance with law.
48. The trial Court very interestingly also raised the presumption u/S90of the Indian Evidence Act in order to hold that the plaintiff has proved the Will Ex.P.2 by means of proving the said document as 30 years old from the date of execution till the date of its 47 production before the Court. In this regard it is worth to note here a decision of the Hon’ble apex Court in (2009) 3 Supreme Court Cases 687 (Bharpur Singh and Others V. Shamsher Singh) to ascertain whether Sec. 90 of the Indian Evidence Act is applicable to a Will. The Hon’ble apex Court has categorically held, in the following manner: “A. Evidence Act, 1872 – Ss. 90, 69 and 70 – presumption regarding documents thirty years old, held, not applicable to will – A will must be proved in terms of S. 63(c), Succession Act, 1925 and S. 68, Evidence Act- In case the said provisions cannot be complied with, Ss. 69 and 70, Evidence Act providing for exceptions in relation thereto, would be attracted – Succession Act, 1925 – S. 63(c)- Family and Personal Laws – Will – Mode of proving.” - - - The first appellate Court, in fact, wrongly applied Section 90 of the Indian Evidence Act to the alleged Will-Ex.P.2. Now the question how the period of 30 years has to be reckoned to apply Section 90 of the Indian Evidence Act to a registered document. In this 48 regard, the following decisions are to be necessarily noted: In a decision reported in 2013(9) SCC319between State of Andhra Pradesh & Others Vs. Star Bone Mill and Fertilizer Company, and the decision reported in 2015 (4) SCC601between Omprakash (Dead) through his legal representatives Vs. Shantidevi & Others, the apex Court has categorically held that as to how the period of 30 years has to be calculated in respect of a registered document in order to give presumption u/S90of the Indian Evidence Act. In both the cases it is held that, it is from the date of execution of the document till the date it is offered or produced in evidence before the Court is the relevant period that has to be taken into consideration by the Court.
49. Admittedly, the said registered Will Ex.P.2 was executed by deceased Ningappa on 16.11.1968. The plaintiff’s power of attorney holder has been examined as P.W.1. As could be seen from the trial Court 49 records his evidence was recorded on 19.06.1998 and Ex.P.2 was produced or offered before the Court in evidence on 19.06.1998. Therefore, it is the case that, the said Will was offered before the Court within 30 years, i.e., before completion of 30 years, but on careful and meticulous calculation, it was produced after completion of 29 years 7 months 3 days. Still almost five months less for completion of the 30 years. This has lost the sight of the appellate Court and therefore the appellate Court has wrongly invoked the provisions u/S90to give presumption in favour of the said document to hold that it is not necessary to prove the will by means of examination of any attesting witnesses or the scribe. Further added to that, the plaintiff has never stated about the existence of any witnesses who can identify the signatures of the attestors and no explanation as to why they were not examined to prove the said will. Therefore, it can not be said that Ex.P.2 will has been proved by the plaintiff. 50 50. The second important aspect is Ex.P.3 which is the joint grant certificate issued in favour of the plaintiff and the deceased Kariavva and what is the consequence of the said joint grant made in favour of those persons. So far as the granting of said land jointly in favour of Kariavva and Durgappa on 13.11.1979 as per Ex.P.3 is not much disputed. Ex.P.3 itself clearly discloses that total extent of one acre 22 guntas in Sy. No.25 has been granted in favour of the plaintiff and deceased Kariavva. Subsequently, the mutation has been accepted in the name of Kariavva and Durgappa, as could be seen from the RTC extracts marked at Exs.P.6 and P.7.
51. As I have already narrated there is no dispute in the written statement and in the evidence adduced by the defendant with regard to the above said factum that the land has been granted jointly in the name of Kariavva and the plaintiff Durgappa. It is the case of the defendant that Kariavva executed a Will and he succeeded to her estate after her death in the year 1991. It is already observed that he has not produced 51 any material to show that he occupied the land from 1991, he has not produced any RTC extracts for the relevant periods to show his possession over the land from the year 1991. Therefore, the above said factual aspects clearly shows that the plaintiff as well Kariavva are the joint owners continued in possession and enjoyment of the property till the plaintiff was dispossessed by the defendant in the year 1996 as alleged by the plaintiff. In the absence of any materials being placed before the Court by the defendant that, earlier to 1996 he entered into possession of the property, the allegation of the plaintiff which has been reiterated in the evidence has to be accepted by the Court. Therefore, if it is accepted the Court has to show whether Ex.P.3 has conveyed any title in favour of the plaintiff and as well as Kariavva. It is well recognized principle of law that either by means of transfer of any land under transfer of property or by means of any Government grant, if any person acquired title over the property, then it should be presumed that they are the owners of the 52 property unless it is rebutted by the other side. Therefore, for all practical purposes the said Kariavva and the plaintiff shall be treated as owners of the said property as on 1996.
52. Though the defendant has claimed that he entered the suit property in the year 1991 he has to show to the Court that he has got better title than the plaintiff. Though the plaintiff has failed to prove the Will alleged to have been executed by Ningappa as discussed above, but still he is able to establish the joint grant made in his favour and Kariavva and that Kariavva and himself have continued to be joint owners of the said property as on the date of the suit. Therefore, amongst the two, i.e., the plaintiff and the defendant who has established the better title has to be considered by the Court for the purpose of ordering for possession of the property in favour of the plaintiff.
53. As discussed above, the defendant has failed to prove either his title or possession over the property by virtue of the will alleged to have been executed by 53 Kariavva. Therefore, he has not established any right, title, interest or possession over the property after the death of Kariavva. Therefore, it is the plaintiff who has established joint title along with Kariavva and after the death of Kariavva, the joint ownership has not been disturbed though the possession of the property is alleged to have been disturbed by the defendant in the year 1996.
54. Under the above said circumstances, when the possessary rights are claimed tracing the possession on the basis of the title, the plaintiff has established better title by means of grant under Ex.P.3 when compared to the defendant. Therefore, the appellate Court has not committed any error in relying upon Ex.P.3 for the purpose of holding that the plaintiff is entitled for the recovery of possession from the defendant.
56. In view of the above discussion, this Court answers the substantial questions of law nos.1 to 3 in the affirmative by holding that the appellate Court has 54 not committed any error and the judgment and decree passed by the first appellate Court deserves to be confirmed by dismissing this appeal. Hence, the following order is passed. The regular second appeal is dismissed with
ORDERcosts throughout by confirming the judgment and decree passed by the first appellate Court in R.A. No.114/2002 on the file of Court of Additional Civil Judge (Sr. Dn.), Davanagere. PL*/bvv/kmv Sd/- JUDGE