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TMI Blog2009 (4) TMI 977X X X X Extracts X X X X X X X X Extracts X X X X ..... his properties to his sons (plaintiffs) under his will dated 15.7.1956. The plaintiffs were unaware that their father owned the said plot, as before and at the time of his death, they were prosecuting their studies and were not conversant with their father s affairs. Their father had taken some loan from Canara Bank and as security therefor had mortgaged the said site and other properties. The Bank obtained a decree for sale of the mortgaged properties. The plaintiffs became aware of the suit property only after they cleared the loan due to the Bank and got back the various title deeds deposited with the Bank on 9.1.1984. Thereafter, they took steps to trace the suit property and collect the necessary papers and found that the defendant who had no right or title was in possession of the said property by putting some temporary unauthorized structure for tethering cattle. The appellants, therefore, filed the said suit. 4. The defendant-respondent resisted the suit by denying the title of plaintiffs and claiming title to the suit property in himself. According to him, the said property belonged to one Channabasavanna; that after his death, the said property devolved upon his wife ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce to the respondent on 15.5.2007 to show cause why the matter should not be remanded to the High Court for writing a proper judgment after considering the evidence on record. However, subsequently, both the parties submitted that the remand will delay the ultimate decision and requested this Court itself to consider the appeal on merits. Accepting the said request, on 10.12.2007, this Court noted that it will go into the merits of the matter also and for that purpose called for the records. We have heard the learned counsel. 7.We find that the High Court did not formulate any points for consideration, nor examine the relevant issues or evidence. It reversed the well considered judgment of the trial court mainly on the ground that katha number of the suit property, given in two of the documents relied by the plaintiffs did not tally. It overlooked the fact that the trial court had recorded its findings based on other evidence, by excluding the said two documents from consideration. The High Court also ignored the explanation for the discrepancy, offered by the plaintiffs. 8.The first appellate court can re-appreciate evidence and record findings different from those recorde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1950 executed by Bellary Muniswamy Pillai conveying the said plot to Narayanswammappa. Ex.P4 is the endorsement issued by the Village Panchyat showing that Narayanaswamappa was the Kathedar of the suit property (though it mentions only the khata number and not the site number). Ex.P18 is the mortgage decree dated 3.2.1965 passed by the Principal Civil Judge, Bangalore city in O.S. No. 8/1965 filed by Canara Bank against Narayanaswamappa which shows the schedule property as one of the mortgaged properties. Ex.P14 is the will under which Narayanaswamappa bequeathed his properties to his two sons (plaintiffs). These documents clearly make out the title of the plaintiffs to the schedule property and also establish that plaintiffs father had exercised rights of ownership thereon by mortgaging the said property in favour of Canara Bank. 11.The next question is whether plaintiffs have established that site no.8 in regard to which they produced the documents of title and established the title, is the suit property in the occupation of defendant. The case of the plaintiffs is that the schedule property is situated in a small layout in Subedarpalya formed by the government, shown in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ead of 95. The correct katha number is 53 as is evident from Ex.P4 and P5 issued by the village punchayat. 13. In law, possession follows title. The plaintiffs having established title to the suit property, will be entitled to decree for possession, unless their right to the suit property was extinguished, by reason of defendant being in adverse possession for a period of twelve years prior to the suit. Re: Question (ii) 14. The defendant has claimed title to the suit property. He, however, contends that the suit property in his occupation bears the site no.18A and measures 25 x 40 and that the said plot was sold to him by Gowramma on 18.11.1985. The defendant contends that the suit property earlier belonged to Gowramma s husband Channabasavanna and on his death, Gowramma became the owner thereof; and that he had taken the said property on rent from in or about the year 1962 and paying rents to Gowramma, till he purchased it from her on 18.11.1985. Defendant has not produced any document to show the title of Gowramma or her husband, though the sale deed dated 18.11.1985 refers to the earlier title deeds. The defendant merely stated that the sale deed dated 18.11.1985 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sequently referred to as no.18/1) of Subedarpalya, Vyalikaval which is the suit property from her husband, nor did she secure letters of administration in regard to the said site. If Gowramma purported to sell a portion of what was acquired by her under deed dated 28.8.1959 and the order in Misc.C.444/1964, than it would mean that what was sold to defendant was a portion of site No.17 measuring 25 x 40 and not the suit property. Thus Ex.D1 dated 18.11.1985 produced by the defendant does not relate to suit property (site no.8). Merely by changing the site number as 18/A, and securing a sale deed from Gowramma, defendant cannot claim title to suit property, as Gowramma never owned the suit property. It is also of some interest to note that the sale deed dated 18.11.1985 recites that Gowramma had already sold portions of the plot (acquired under deed dated 28.8.1959 and order in Misc.C No.444/1964) to others. If so, it is doubtful anything remained in site no.17 for sale. But it is unnecessary to examine that aspect as we are not concerned with site no.17 at all in this case. The sale deed dated 18.11.1985 alleged to have been executed by Gowramma (Ex.D1 is a certified copy) was cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17.The legal position is no doubt well settled. To establish a claim of title by prescription, that is adverse possession for 12 years or more, the possession of the claimant must be physical/actual, exclusive, open, uninterrupted, notorious and hostile to the true owner for a period exceeding twelve years. It is also well settled that long and continuous possession by itself would not constitute adverse possession if it was either permissive possession or possession without animus possidendi. The pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Unless the person possessing the property has the requisite animus to possess the property hostile to the title of the true owner, the period for prescription will not commence. (Vide : Periasami vs. P. Periathambi 1995 (6) SCC 523, Md. Mohammad Ali (dead) by LRs. vs. Jagdish Kalita - 2004 (1) SCC 271 and P.T. Munichikkanna Reddy vs. Revamma 2007 (6) SCC 59). 18.We are however of the view that the decision in Mohan Lal (supra) relied on by the plaintiffs is inapplicable, as the defendant therein had pleaded that he was in possession, having o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1985. As the sale deed dated 18.11.1985 is established to be a bogus and false document, the claim of defendant that he was in occupation of the suit site as a tenant from 1962, is liable to be rejected. 20.The only other evidence produced by defendant to prove his possession is the judgment dated 18.9.1979 in the suit filed by him against the Corporation of City of Bangalore in the year 1978, when it proposed to take action against him for unauthorized construction in the schedule site. Here again, the defendant did not produce either the plaint or the judgment. The plaintiffs produced and marked the judgment as Ex.P13. The said judgment shows that the defendant did not claim that the property belonged to Gowramma or that he was the tenant of Gowramma in the said site. On the other hand, he merely alleged that he was in possession of plot No. 18A. The Bangalore City Corporation denied his ownership and possession and contended that he had no right, title, or interest in the suit property and pointed out that he had carefully avoided any reference to the source of his title or payment of property taxes in regard to suit property and that there was no allegation that the katha st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned one Muniappa as PW3 who states that he has been staying in the house opposite to site no.8 (on the Northern side) since 1950 and that one Perumal was the owner of the adjoining site no.9 wherein he had constructed three small houses; that Perumal had sold the property no.9 to Muddukrishna; and that defendant was staying in one of the houses no.9 as a tenant of Muddukrishna. He also stated that the defendant put up a small shed in a part of site no.8 which was lying vacant, to tether his cows and subsequently, in the year 1992 (during the pendency of the suit) constructed a house in site no.8. He has also stated that Gowramma was earlier living in the same locality four houses away. 23. The judgment in O.S. No.578/1978 (Ex.P13) relied upon by defendant and the evidence of PW2 and PW3 would clearly establish that the defendant was residing in the property of Muddukrishna (site No.9) adjoining the suit property as a tenant, and that he had unauthorizedly put up a temporary cattle shed in the suit property in or about the year 1978. This may at best prove adverse possession of suit property by defendant from 1978. 24. The defendant has not produced any evidence to show that h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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