V NAGENDRA V. INCOME TAX OFFICERS

RFA/299/2008

AI Insights

The case involves an appeal by the plaintiff, V. Nagendra, against the judgment of the VI Additional City Civil Judge, Bengaluru, which dismissed his suit for declaration and permanent injunction based on an unregistered gift deed. The plaintiff claimed ownership of 12 guntas in Survey No.6/2 based on a gift deed from 1980, while the defendant, a cooperative society, claimed to have purchased the entire extent of 2 acres 14 guntas. The trial court dismissed the suit, finding no evidence of the plaintiff's title or possession and rejecting the claim of adverse possession. The High Court upheld this decision, emphasizing the lack of title documents and the failure to prove adverse possession.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 696199 (HC-KARNATAKA)
• Appeal Type: Others
• Pronouncement Date: 22-04-2022
• Assessment Year: misc
• Other Referred Cases: Perry vs. Clissold, Nair Service Society vs. K.C.Alexander, Karnataka Board of Wakf vs. Government of India & Others
• Laws Referred To: Section 96 of CPC, Karnataka Co-operative Societies Act
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: B N PRAKASH
• Assessee Lawyers: A KUMARAVEL
• Keywords: Adverse possession; Permanent injunction; Title Dispute; Unregistered gift deed
• Section: 125; 96

Judgement Text

" 1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF APRIL, 2022 BEFORE THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM R.F.A NO.299 OF 2008(DEC) BETWEEN: V NAGENDRA S/O LATE VENKATARAMAIAH AGED ABOUT 40 YEARS R/AT KRISHNAIAHNA PALYA KRISHNARAJAPURAM HOBLI, BANGALORE NORTH TALUK, BANGALORE-560038. ...APPELLANT (BY SRI.A KUMARAVEL, ADVOCATE) AND: INCOME TAX OFFICERS HOUSE BUILDING CO-OPERATIVE SOCIETY LTD QUEENS ROAD, BANGALORE - 560001 REP BY ITS SECRETARY. …RESPONDENT (BY SRI.B.N.PRAKASH, ADVOCATE FOR M/S LAWYERS INC) THIS RFA IS FILED U/S.96 OF CPC AGAINST THE JUDGMENT AND DECREE DT.8.2.2008 PASSED IN O.S.NO.5888/93 ON THE FILE OF THE VI ADDL. CITY CIVIL JUDGE, BANGALORE (CCH-11), DISMISSING THE SUIT FOR DECLARATION AND PERMANENT INJUNCTION. 2 THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 25.03.2022, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT The captioned appeal is filed by plaintiff challenging the judgment and decree dated 8.2.2008 passed in O.S.No.5888/1993 by the VI Additional City Civil Judge, Bengaluru, for declaration and consequential relief of injunction based on an unregistered gift deed is dismissed. 2. For the sake of convenience, the parties are referred to as per their rank before the Trial Court. 3. The facts leading to the case are as under: 3(a)The plaintiff filed a suit seeking the relief of declaration and claiming title to an extent of 12 guntas in Survey No.6/2 of Bennuganahalli Village, Krishnarajapura Hobli, Bengaluru South Taluk, based on an unregistered gift deed dated 24.10.1980 executed by erstwhile owner Sri.Musalappa and his wife Smt. Channamma. The plaintiff 3 claims that his grand father Muslappa and his wife Chennappa were the owners of Survey No.6/2 totally measuring 2 acres 14 guntas. His grand father sold 1 acre 2 guntas in favour of one Munithayappa and also sold another bit of land measuring 1 acre to one S.A. Murthy and retained 12 guntas on the Northern side in Survey No.6/2, which is the subject-matter of the suit. 3(b)The plaintiff has specifically pleaded that after the death of his grand father, he is in peaceful possession and enjoyment of suit schedule property. It is further contended that the defendant-Society has purchased 2 acres 2 guntas on the Southern side of the suit schedule property from Smt. Munithayamma and S.A. Murthy and therefore, a specific contention is taken that the defendant-society has acquired title only to an extent of 2 acres 2 gunas in Survey No.6/2 on the southern side. The grievance of the plaintiff is that the defendant-society is high handedly trying to tress pass and encroach the suit schedule property on the Southern side 4 under the garb of forming roads. In the alternate the plaintiff also claimed that he has perfected title by way of adverse possession. Hence, the present suit. 3(c)The defendant-Society on receipt of summons contested the proceedings and stoutly denied the entire averments made in the plaint. The defendant has seriously disputed the unregistered gift deed dated 24.10.1980. The defendant-Society has specifically contended that it has purchased the entire extent measuring 2 acres 14 guntas including 2 guntas kharab and converted the entire extent for residential purpose vide conversion order dated 20.07.1969. At para 9 of the written statement, the defendant-society has narrated the manner in which the entire 2 acres 14 guntas was acquired under three separate sale transactions. Basing reliance on the three sale deeds, the defendant claims that the erstwhile owners have sold the entire extent of 2 acres 14 guntas in favour of the defendant-society. The defendant also claimed that the entire extent in Survey No.6/2 was subject 5 matter of acquisition and at the instance of the defendant- Society, Survey No.6/2 was deleted at the time of issue of the final notification. On these set of defence, the defendant- society has sought for dismissal of the suit. 3(d)Based on the pleadings, the following issues were framed: \"1. Whether the Plaintiff proves that he is the absolute owner of the suit property and he is entitled for declaration as prayed? 2. Whether the Plaintiff proves that he is in lawful possession of the suit schedule property? 3. Whether the Plaintiff proves that the Defendant is Interfering with his possession over the suit property? 4. Whether the Plaintiff is entitled for injunction restraining the Defendant from interfering with his possession? 5. Whether the Defendant proves that the suit is not maintainable for not issuing notice U/s.125 of the Karnataka Co-operative Societies Act? 6. What order? Addl Issues: 1. Whether the Plaintiff proves that, he has perfected his title to the property by adverse possession?\" 6 3(e)The plaintiff in support of his contention examined himself as PW1 and relied on documentary evidence vide Exs.P1 to 105. The defendant to counter the claim of the plaintiff examined its official as D.W.1 and relied on documentary evidence as per Exs.D1 to D16. 3(f)The Trial Court having examined the rival contentions as well as the pleadings, ocular and documentary evidence answered Issue No.1 and additional Issue No.1 in the negative. The learned Judge having examined oral and documentary evidence more particularly Exs.D13, 14 and 15 has recorded a categorical finding that the erstwhile owner has sold the entire extent measuring 2 acres 14 guntas under three registered sale deeds. The learned Judge has come to the conclusion that the defendant-society has purchased the entire extent of 2 acres 14 guntas. The learned Judge was of the view that though the entire claim of plaintiff rests on an unregistered gift deed dated 24.10.1980 to an extent of 12 7 guntas, the said document is not produced and therefore, the learned Judge was of the view that the plaintiff is not entitled for the relief of possession over the suit schedule property. While examining additional issue No.1, the Trial Court has recorded a categorical findings that the plaintiff has failed to prove his exclusive possession over the suit schedule property and therefore, was of the view that plaintiff has failed to prove that he has perfected title by way of adverse possession. On these set of reasoning, the learned Judge has proceeded to dismiss the suit. Feeling aggrieved by the same, the plaintiff has preferred this regular first appeal. 4. Learned counsel appearing for the plaintiff reiterating the grounds urged in the appeal memo would vehemently argue and contend before this Court that the defendant-society has acquired title only to an extent of 2 acres 02 guntas, therefore, the Trial Court erred in dismissing the suit. He would place reliance on Ex.P15 and contend that 8 BDA has acquired Survey No.6/2 excluding 10 guntas. The learned Judge has discarded the spot inspection done by the BDA and BBMP as per Ex.P32 and therefore, the same has resulted in miscarriage of justice. He would strenuously argue and place reliance on evidence of D.W.1 and contend that there is no claim insofar as suit schedule property is concerned. He would further contend that coupled with the categorical admission of D.W.1, the plaintiff has produced several documents namely BDA endorsements, R.T.Cs, tax paid receipts for more than 30 years which would clearly demonstrate that the plaintiff is in possession of vacant land measuring 12 guntas on the northern side. Therefore, he would contend that the judgment and decree of the Court below suffers from serious infirmities. In the alternate, he would contend that the plea of adverse possession is not at all considered by the learned Judge in the light of the documents placed on record and therefore, the findings on Issue No.1 is palpably erroneous and warrant interference. 9 Learned counsel has placed heavy reliance on additional evidence. The appellant-plaintiff in all has produced 16 documents and placing reliance on the said documents he would contend that the additional documents are very much essential for effective adjudication of lis between the parties. Therefore, in the interest of justice, he would request this Court to admit the additional evidence and decide the controversy between the parties. 5. Per contra, learned counsel appearing for defendants would however counter the arguments addressed by the plaintiff. Supporting the conclusions and reasons tendered by the Court below, the learned counsel would contend that defendant-society has acquired valid right and title to the entire extent measuring 2 acres 14 guntas under three separate sale deeds. He would refer to the three separate deeds dated 24.10.1968 vide Ex.D1, 4.11.1968 vide Ex.D2 and 16.12.1968 vide Ex.D3. To buttress his arguments, he would take this Court to para 24 of the Trial Court 10 judgment. Placing reliance on para 24, he would contend that the learned Judge has taken pain in meticulously calculating the total extents sold under all the three sale deeds. The two sale transactions are in terms of square feet and if the extents are aggregated, the same would work out to 2 acres 14 guntas. He would bring to the notice of this Court that there is no explanation offered nor evidence is led by the plaintiff to counter the extents shown under three separate sale deeds. He would further contend that plaintiff does not refer to the third sale deed vide Ex.D3 and it is in this background, the plaintiff is falsely claiming that the original vendor retained 12 guntas. He would also take this Court through the averments made by the defendant-society at para 9 of the written statement and contend that the defendant has specifically narrated the acquisition of right and title by the defendant-society and there is a reference to the title documents in the said paras. He would further contend that the defendant-society having acquired the entire extent 11 sought conversion and the competent authority has passed a conversion order vide Ex.D6. He would also place reliance on layout plan vide Ex.D10 indicating that vide conversion order, 2 acres 12 guntas is developed by the defendant-society. He would conclude his arguments and contend that the suit of the plaintiff has to fail on two counts. Firstly, the plaintiff will not acquire any right and title based on an unregistered gift deed and no declaration can be granted. Secondly, plaintiff having set up a plea of adverse possession has failed to prove that he has perfected his title by way of adverse possession. Therefore, the judgment and decree of the Trial Court dismissing the suit filed by the plaintiff in O.S.No.5888/1993 does not warrant any interference. 6. Heard the learned counsel appearing for the plaintiff and the learned counsel appearing for the defendant. 7. The following points would arise for consideration: 12 (1)Whether the finding of the Trial Court that the plaintiff has failed to prove that he is the absolute owner of the suit schedule property is perverse and palpably erroneous? (2)Whether the finding of the Trial Court that plaintiff has failed to prove that he is in lawful possession over suit schedule property is perverse and erroneous? (3)Whether the Trial Court erred in holding that the plaintiff has failed to prove that he has perfected his title to the property by way of adverse possession? (4)Whether plaintiff is entitled for production of additional evidence? 8. Findings on Points 1 and 2: 8(a)The plaintiff is asserting title to an extent of 12 guntas in survey No.6/2 on the basis of unregistered gift deed dated 24.10.1980 executed by his grand parents namely Musalappa and Channamma. Having claimed title on the basis 13 of the gift deed the entire burden was on the plaintiff to establish his title. Even if we go by the admitted set of pleadings at para 3 of the plaint, this Court is of the view that the plaintiff is not entitled for any relief as he would not acquire any valid right and title under an unregistered gift deed. Even otherwise, the plaintiff has not produced the alleged gift deed dated 24.10.1980. 8(b)In the alternative, the plaintiff also asserts that he has perfected his title over the suit schedule property to an extent of 12 guntas by way of an adverse possession. Therefore, on meticulous examination of the pleadings and the ocular evidence led by the plaintiff, this Court would find that there is absolutely no evidence more particularly the title documents to substantiate the claim of the plaintiff. 8(c)Per contra, the defendant-Society to establish its title to the entire extent measuring 2 acres 14 guntas has placed on record the title documents vide Exs.D1 to D3 coupled with Exs.D13, 14 and 15. On meticulous examination of these title 14 documents, this Court would find that the erstwhile owners namely Musalappa and his wife Channamma have sold the entire extent measuring 2 acres 14 guntas. During the life time of Mualappa he sold 1 acre 6 guntas in Survey No.6/2 in favour of one Smt. Munithayamma. He further sold another bit of land in Survey No.6/2 measuring east-west 120 ft. and south-north 92 ft. in favour of one S.A.Murthy under sale deed dated 22.2.1965. The said Munithayamma and S.A. Murthy, in turn, sold the respective portions in favour of first defendant Society and the remaining portion was sold by Musalappa and his son Venkataramaiah in favour of defendant society. The title documents vide Exs.D1 to D3 and D13 to 15 are produced. Pursuant to acquisition of right and title, the defendant society sought conversion and the competent authority has passed conversion order to an extent of 2 acres 12 guntas as per Exs.D6 and 7. After securing conversion order, the defendant society has formed a layout and the layout plan is approved by the Town Planning Officer of City 15 Improvement Trust Board, Bengaluru as per Ex.D10. Therefore, perusal of title documents and orders passed by the competent authorities would clearly establish that the erstwhile owners have dealt with survey No.6/2 and the entire extent was sold. Therefore, the contention of the plaintiff that his grandparents have retained 12 guntas in Survey No.6/2 is contrary to title documents vide Exs.D1 to D3 and D13 to 16. 8(d)If the clinching rebuttal evidence is taken into consideration, then this Court is of the view that plaintiff's grandparents who were the original owners parted with possession pursuant to alienations and therefore, there is absolutely no evidence on record indicating that they had retained 12 guntas in Survey No.6/2. If the grandparents of plaintiff sold the entire extent and were not found to be in possession of any portion in Survey No.6/2, then this Court is unable to understand as to how plaintiff can assert title and possession in respect of 12 gunts in Survey No.6/2. The conversion order vide Exs.D6 and 7 coupled with layout plan 16 vide Ex.D10 would clearly establish that it is the defendant society which has formed a layout and sites are sold to various persons. Therefore, plaintiff has failed to establish his title and has also failed to establish his lawful possession as on the date of filing of the suit. Accordingly, points 1 and 2 are answered in negative. 9. Regarding point No.3: 9(a)Before I advert to the propositions revolving around the plea of adverse possession, I deem it necessary to examine the pleadings regarding the plea of adverse possession in the plaint. Paragraphs 4 and 5 of the plaint are relevant and same are culled out as under: \"4. The Plaintiff submits that subsequent to the death of his grand father, he has approached the Revenue authorities for the change of Khata and R.T.C. in his name as the legal heir and successor to the deceased Musalappa. In this connection it is relevant to submit that the other legal heirs of the deceased Musalappa have also given their consent to effect the Khata and RTC, in the name of the Plaintiff Accordingly the Revenue authorities have been pleased to change the Khata and RTC in the name of the Plaintiff. The Plaintiff submits that the Khata and RTC stands in his name and he has paid upto date Kandayam in respect of the Suit Schedule Property. The Khatha, RTC and Kandayam Receipts are herewith produced for the kind perusal of this Hon'ble Court. In the circumstances 17 stated above the Plaintiff is in undisturbed peaceful possession and enjoyment of the Suit Schedule Properties as absolute owner thereof and perfected his title by succession and inheritance and also even by adverse possession as against the Defendant and others. 5. The Plaintiff submits that the Defendant Society has purchased the lands in survey number 6/2 referred to above measuring 2 Acres 2 Guntas on the Southem side to the Suit Schedule Property from Smt Munithatyamma and S.A. Murthy to whom the Plaintiff's grand father late Musalappa sold for consideration as already stated supra. The Plaintiff submits that the Defendant Society being the purchaser of 2 Acres and 2 Guntas of land only in the survey number 6/2 on the Southern side to the Suit Schedule Property, and the Defendant who has no manner of right, title or interest what so ever in or over the Suit Schedule Property, taking undue advantage of the death of Plaintiff's Grand father late Musalappa, is attempting to trespass and encroach the Schedule Property on the Southern side by forming Roads and digging trenches in the first week of April 1993. The Plaintiff submits that this act of the Defendant's Society is highly illegal, unlawful as the Defendant Society has no manner of right, title or interest whatsoever in or over the Suit Schedule Property as stated above. The Plaintiff submits that when the same has been questioned by the Plaintiff by showing the Khata and R.T.C, the Defendant Society has not cared to see the same and neglected to stop the said work of forming roads and digging trenches. The Plaintiff submits that the Defendant Society is vested with powers, money and influence was not keeping quiet and the Secretary of the Defendant Society along with his members on 12/04/1993 again came near the Suit Schedule Property and instructed his men to go on with the work, but with great difficulty and timely intervention of the Plaintiff and his well-wishers the illegal act of the Defendant Society has been prevented. The Plaintiff submits subsequently he got issued a Legal Notice dated 15/04/1993 to the Defendant calling upon the Defendant to desist from illegal acts of trespassing into the Plaintiff's Suit Schedule Property and the same has been duly served upon 18 the Defendant on 20/04/1993 and a copy of the said Notice was also sent to the Registrar of Co-operative Societies Bangalore City as required under Law. The Plaintiff submits however, the Defendant being an influential person may not keep quiet and he may at any time come and trespass and encroach the Suit Schedule Property on the Southern side unless and until he is prevented from doing so by passing an Order of Permanent Injunction by this Hon'ble Court. Hence, the Suit.\" 9(b)On bare reading of paragraphs 4 and 5, this Court would find that there are no specific pleadings in the plaint in regard to the exact date on which the possession of plaintiff became adverse to that of defendant. Concept of adverse possession has been well settled by the judicial committee of the Privy Council in 1907 in Perry vs. Clissold1, wherein it has been held as under: \"It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of Limitation applicable to the 1 (1907) A.C. 73 19 case, his right is forever extinguished and the possessory owner acquires an absolute title.\" 9(c)The decision of the Privy Council stated supra though not binding on the Supreme Court but, however, the said decision has been upheld by the three Judges of the Hon'ble Apex Court in the case of Nair Service Society vs. K.C.Alexander2. Therefore, it can be said that till this date, it is trite law that a person who claims adverse possession has to plead and prove hostile possession of the land. The Hon'ble Apex Court in the case of Karnataka Board of Wakf vs. Government of India & Others3 regarding the pleadings to be made by a party while claiming title over an immovable property on the basis of adverse possession has held as under: \"Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show (a) on what date he came into 2 AIR 1968 SC 1165 3 (2004) 10 SCC 779 20 possession, (b) what was the nature of his possession (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.\" 9(d) It is trite law that in case of adverse possession of land, two aspects has to be taken into consideration. Firstly, the nature of possession of the land should be exclusive, continuous, uninterrupted and it should be actual physical possession and not merely constructive possession over the land. Secondly, the possession should be hostile to the actual owner. The requisite ingredient of animus possidendi (intention to possess) should be present when a plea of adverse possession is raised. The plaintiff has not produced any documents to indicate that he is in possession of suit schedule property. Therefore, the burden of proof was 21 entirely on the plaintiff and on examination of evidence on record, this Court is of the view that plaintiff has failed to discharge his burden. Accordingly, point No.3 formulated above is answered in the negative. 10. Regarding Point No.4: Since this Court has answered points 1 to 3 in the negative by holding that plaintiff has failed to establish his title over the suit schedule property by way of adverse possession and since this Court has recorded a categorical finding that the plaintiff has failed to establish his possession over the suit schedule property, the additional evidence sought to be produced before this Court are not at all necessary for adjudication of plaintiff's right in the present case on hand. The additional documents sought to be produced at the appellate stage have no relevance to the pleadings set up in plaint nor they would come to the aid of the plaintiff in establishing his case. Therefore, I am of the view that the additional documents are not at all necessary for effective 22 adjudication. This Court would find that the additional documents are produced only to protract the hearing. The entire claim made by the plaintiff is a frivolous claim. Therefore, I am of the view that the application filed in I.A.No.2/2021 seeking production of additional documents is liable to be rejected and accordingly, point No.4 is answered in the negative. 11. In view of the findings recorded by this Court on points 1 to 4, this Court would affirm the findings arrived at by the Trial Court while answering issue Nos.1 to 4 and additional issue. In the absence of title documents, the Trial Court was justified in holding that plaintiff is not the owner of the suit schedule property and in recording a finding that the plaintiff is not in possession over the suit schedule property. The plea of adverse possession was rightly dealt by the Trial Court while examining the additional issue. The judgment and decree of the Trial Court in dismissing the suit is based on clinching rebuttal evidence adduced by defendant No.1 23 society. Therefore, this Court would affirm the conclusions and findings recorded by the Trial Court. 12. For the foregoing reasons, I pass the following: ORDER The appeal is dismissed. The judgment and decree dated 8.2.2008 passed in O.S.No.5888/1993 by the VI Additional City Civil Judge, Bengaluru, is hereby confirmed. Sd/- JUDGE *alb/- "