Full Judgment Text
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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
BENCH:
Dr. Arijit Pasayat & S. H. Kapadia
JUDGMENT:
J U D G M E N T
KAPADIA, J.
This civil appeal arises out of judgment and decree rendered by
Karnataka High Court on 22.3.1999 filed under section 96 CPC against
judgment and decree dated 11.10.1996 passed in O.S. No. 3656/81 on the
file of City Civil Judge, Bangalore, decreeing the suit for declaration. By the
impugned judgment, the High Court has set aside the judgment and decree
dated 11.10.1996. Hence this civil appeal has been filed by the LRs. of
deceased Krishnamurthy S. Setlur (original plaintiff).
The facts giving rise to this civil appeal are as follows.
One Kalyana Sundram Iyer was the owner of the suit properties. H.R.
Narayana Iyengar (represented by his LRs.) claimed to have purchased the
suit properties from Iyer under sale deed dated 10.7.1942. At the relevant
time, one Shyamala Raju was the cultivating tenant. Iyengar (since
deceased) claimed that he had terminated the tenancy in 1948. On
termination of the tenancy disputes arose between Iyengar and Shyamala
Raju. Consequently, Suit No. 79/49 came to be instituted by Iyengar in the
court of Second Munsiff, Bangalore. The suit was instituted by Iyengar
against K.S. Setlur and Shyamala Raju stating that they had unauthorisedly
disturbed his possession. Suit No. 79/49 was for permanent injunction
restraining the defendants from interfering with the possession of Iyengar
(plaintiff). In his defence Raju stated that he was in possession for eight
years; that he continued to be in possession; that Iyengar was collecting rents
arising from the suit properties as a constituted attorney of K.S. Setlur; that
on termination of the Power of Attorney, he paid rent to K.S. Setlur and,
therefore, he was in possession of the suit lands as a tenant under K.S. Setlur
and not under Iyengar (plaintiff). He (Raju) in his written statement stated
that he continued to remain in possession till 28.8.1950 (see p. 78 of the SLP
Paper Book). According to Iyengar, defendant No. 2 (Shyamala Raju) was
his tenant who turned hostile when he terminated the tenancy. According to
Iyengar, there was collusion between Shyamala Raju and K.S. Setlur to
defeat his rights. In the said suit, K.S. Setlur contended that he was the real
owner who had appointed Iyengar as his constituted attorney to collect rent
and profits. It was contended that the sale deed executed by Kalyana
Sundram Iyer was a benami transaction. He further alleged that in 1946 he
had cancelled the Power of Attorney in favour of Iyengar. He further alleged
that after 1946, Shyamala Raju had considered him as the landlord. Rent was
paid to him by Shyamala Raju. Raju had attorned in favour of K.S. Setlur.
Lease deeds were executed by Shyamala Raju in favour of K.S. Setlur. By
judgment dated 28.2.1951, delivered by the Munsiff Court in Suit No. 79/49,
it was held that the factum of Shyamala Raju being in possession of the suit
lands till 28.8.1950 stood proved, therefore, it was held that Raju was in
possession of the suit lands from 1946 onwards. It was further observed by
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the trial court that the disputed suit lands were not in de facto possession of
Iyengar. The trial court relied upon the revenue records of 1947-48 showing
cultivation of the lands by Shyamala Raju (see p. 91 of the SLP Paper
Book). The trial court did not believe the plaintiff (Iyengar) to say that he
had entered into possession in 1947. However, the trial court also observed
that the plaintiff had a conveyance in his favour from Kalyana Sundram Iyer
but the suit was for permanent injunction and since the plaintiff was not in
actual possession it was not possible to grant injunction restraining
Shyamala Raju from entering the lands. The trial court further held that
Shyamala Raju as a tenant had attorned in favour of K.S. Setlur. The trial
court, however, held that it was not in a position to give a clear-cut finding
as to whether Shyamala Raju was the tenant of Iyengar or of K.S. Setlur. In
this connection we find on page 95 of the SLP Paper Book the conclusion of
the trial court which states that, "the only inference that can be drawn is that
the second defendant (Shyamala Raju) is in possession and cultivation of the
suit disputed lands; whether he was tenant under the plaintiff (Iyengar) or
the first defendant (K.S. Setlur) is not established." In the said judgment, the
trial court further observed that since the plaintiff had instituted a suit for
permanent injunction it was not necessary for the court to go into the
question of the benami nature of the sale deed executed by Kalyana
Sundram Iyer in favour of the plaintiff as well as the real ownership of the
suit lands. According to the trial court, it was not necessary to go into the
question of ownership except to the limited extent, namely, attornment of the
tenancy by Shyamala Raju in favour of K.S. Setlur and not in favour of
Iyenger (plaintiff). According to the trial court, since Shyamala Raju
(defendant no. 2) had continued to remain in possession till he was
prevented by an order of interim injunction which stood subsequently
vacated and since the plaintiff had failed to prove his actual possession, the
plaintiff was not entitled to an order of injunction.The question of title was
not gone into by the trial court. The question of title deed being benami was
not gone into by the trial court. In conclusion, the trial court observed that it
was open to the plaintiff to file suit on title and for possession. The trial
court observed that grant of injunction is a matter of discretion. The court
was, therefore, not inclined to grant permanent injunction in favour of the
plaintiff. At this stage, we may point out that the litigation has a chequered
history. We need not go into the various stages of this litigation except to
state that ultimately by judgment dated 14.12.1961 delivered by Additional
Civil Judge, Bangalore vide Regular Appeal No. 70/51 the suit filed by
Iyengar (plaintiff-appellant) ultimately stood dismissed. The judgment of the
trial court dated 28.2.1951 stood affirmed. The termination of tenancy of
Shyamala Raju was proved but there was no evidence that the plaintiff had
obtained actual possession from the ex-tenant on termination of tenancy. In
the result, the appeal stood dismissed on the ground that the appellant
(Iyengar) was not in possession of the suit lands on the date of filing of Suit
No. 79/49 (see p. 118 of the SLP Paper Book). The appeal of Iyengar stood
dismissed on 14.12.1961.
Coming to the second round of litigation, it may be stated that after
Shyamala Raju attorned in favour of K.S. Setlur, differences arose which led
to litigation between K.S. Setlur on one hand and Shyamala Raju on the
other hand. In the said litigation, Iyengar was not a party. In the said
litigation LRs. of Iyengar were not made party-defendants. Iyenger died on
6.12.1959. As stated above, disputes arose between K.S. Setlur and
Shyamala Raju around 1962. K.S. Setlur instituted Suit No. 89/63 for
declaration of his title and for permanent injunction. In the said suit K.S.
Setlur contended, that Iyengar was his constituted attorney; that Iyengar had
purchased the suit lands from Kalyana Sundram Iyer in 1942; that he had
terminated the Power of Attorney in favour of Iyengar in 1946; that
Shyamala Raju had attorned the tenancy in his favour in 1946 and that on
23.4.1962 Shyamala Raju had surrendered the suit lands to K.S. Setlur. In
the said suit, K.S. Setlur alleged, that Shyamala Raju was his ex-tenant; that
Raju had surrendered his possession on 23.4.1962, and after surrender he has
been interfering with his possession. It appears that Shyamala Raju had
purported to sell a portion of the suit lands which led Setlur to file Suit No.
89/63 saying that Shyamala Raju had no right to convey the suit lands or any
portion thereof. In the said suit, originally one of the issues framed by the
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trial court was whether K.S. Setlur was the owner of the suit lands and
whether he was in possession of the suit lands. Later on in appeal, the
question framed was whether K.S. Setlur had proved his possessory title to
the suit lands. This question was answered in favour of K.S. Setlur in the
affirmative in RSA No. 545/73, which appeal stood disposed of by the High
Court vide judgment dated 14.8.1981 arising from Suit No. 89/63 filed by
K.S. Setlur. It is this judgment dated 14.8.1981 of the High Court which
constitutes the basis of the judgment of the trial court in the present
proceedings. Be that as it may, the High Court in its judgment in RSA No.
545/73 held that since Shyamala Raju had surrendered the suit lands in
favour of K.S. Setlur in 1962 it was obvious that K.S. Setlur was put in
possession through the intervention of the Tahsildar (see p. 126 of the SLP
Paper Book). According to the High Court, the tenancy of Shyamala Raju
stood terminated in 1946, that Setlur has been in possession since 1946, that
Suit No. 89/63 was filed by Setlur against Shyamala Raju in February, 1963
and, therefore, when Setlur had been in possession for more than 12 years
since 1946 he had the possessory title vested in him and his possession had
to be protected against the whole world except the true owner and, therefore,
according to the High Court, the trial court should not have dismissed the
suit of Setlur against Shyamala Raju bearing No. 89/63 but should have
given a declaration that Setlur had the possessory title for more than 12 years
and the trial court should have given declaration to that effect. Accordingly,
the High Court vide its judgment dated 14.8.1981 overruled the decision of
the trial court dismissing the suit filed by Setlur for declaration of his title.
Accordingly in the second round of litigation Setlur succeeded in obtaining a
declaration to the effect that he had possessory title in him. At this stage, it
may be noted that Iyengar (since deceased) never instituted a suit for
declaration of title.
Before coming to the present suit, it may be pointed out that during
the intervening period between the above two proceedings, K.S. Setlur had
instituted Suit No. 94/56 against Iyengar for accounts and reconveyance
based on the sale deed of 1942 executed by Kalyan Sundram Iyer in favour
of Iyengar. In Suit No. 94/56, the question of possession or prescriptive title
was neither raised nor decided. Issue No. 12 in that suit related to the plea of
reconveyance. The said suit was dismissed on 10.11.1961 by the Additional
Civil Judge, Bangalore. In that suit, Setlur had claimed that he was the real
purchaser of the suit lands from Kalyan Sundram Iyer in 1941-42; that
Iyengar was his agent and was only a benamidar and, therefore, the purchase
by Iyengar was only for the benefit of K.S. Setlur and, therefore, Iyengar or
his LRs. were liable to reconvey the suit lands to the plaintiff (K.S. Setlur).
This story was not believed by the trial court. By the said judgment dated
10.11.1961, it was held that the case of Setlur was a fairy tale and that Setlur
had failed to prove that the suit lands were purchased from his funds or from
the funds of his joint family. In the circumstances, it was held by the trial
court that Setlur was not entitled to reconveyance and that he had failed to
prove that Iyengar was only a benamidar in the transaction of 1941-42 with
Kalyan Sundram Iyer. Accordingly, Suit No. 94/56 filed by Setlur against
Iyengar stood dismissed. In the said suit, Setlur had also sought a permanent
injunction restraining Iyengar/ his LRs. from interfering with his peaceful
possession and also for restraining Iyengar/ his LRs. from claiming
possession. According to the appellants herein, the prayer for injunction was
not pressed in view of the judgment in the earlier Suit No. 79/49 on the
question of possession between Iyengar and Setlur. However, according to
the LRs. of Iyengar, Setlur did not press for injunction in the said suit for
reconveyance as Setlur was dispossessed in 1953.
To complete the chronology of events, K.S. Setlur (plaintiff) in the
present proceedings instituted, before the Additional City Civil Court,
Bangalore, Suit No. 3656/81. This suit was instituted on 11.12.1981. The
said suit was for a declaration that Setlur was the owner of the suit lands and
that the LRs. of Iyengar or their alienees got no title from two sale deeds
dated 21.5.1970 and 7.9.1970 executed by LRs. of Iyengar in favour of
Narasimha Setty and others (defendants). In the said suit, Setlur once again
alleged that the suit lands originally belongs to Kalyana Sundram Iyer, they
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were cultivated by Shyamala Raju, in 1942 he had purchased the suit lands
through his constituted attorney (Iyengar), that the said deed of 1942 was
nominally in favour of Iyengar as his agent and that Shyamala Raju had
attorned in his favour in 1946. The above averment regarding the benami
nature of transaction was made by K.S. Setlur in the present suit despite the
dismissal of his Suit No. 94/56 against Iyengar. It was further submitted by
K.S. Setlur that vide judgment dated 14.8.1981, delivered by the High Court
in RSA No. 545/73, he has been declared to have acquired possessory title to
the suit lands as being in possession thereof between 1946 and 1963 and,
therefore, the LRs. of Iyengar had no right, title or interest to convey the suit
lands on 21.5.1970 and 7.9.1970 to Narasimha Setty and others. In the said
suit Setlur sought a declaration that he may be declared as an owner. He has
also prayed for possession of a portion of the properties allegedly occupied
by Setty and others and for permanent injunction (see p. 134 of the SLP
Paper Book). In the said suit, the LRs. of Iyengar as well as their successors-
in-title (defendants) denied that the suit property was purchased by Iyengar
for K.S. Setlur as his Power of Attorney holder. They also denied the
allegation that K.S. Setlur had obtained possession at the time of attornment
of tenancy in 1946. The defendants contended that neither K.S. Setlur nor
Shyamala Raju were in possession in 1946 and that documents of allotment
were fictitious and never acted upon. They contended that they were in
exclusive, continuous and undisturbed physical possession and enjoying the
suit lands. The defendants asserted that Iyengar had purchased the suit lands
from Kalyana Sundram Iyer and they were in lawful and exclusive
possession of the suit lands. The defendants further stated that they were
unaware of the proceedings between K.S. Setlur and Shyamala Raju
culminating in the judgment and decree dated 14.8.1981 in RSA No. 545/73
and, in the circumstances, the said judgment of the High Court in RSA No.
545/73 was not binding on them. They denied of having taken possession
without authority of law in September/ November, 1970 as alleged by K.S.
Setlur (plaintiff). They also relied upon the revenue records from 1967 to
show that they were in possession of the suit lands. (see p. 140 of the SLP
Paper Book)
In the present suit, issues were framed by the trial court. One of the
main issues was whether the plaintiff (K.S. Setlur) has proved that the
defendants wrongly came into possession of the suit lands in 1970 and
whether the plaintiff was entitled to get back the possession from the
defendants herein. The said issue was answered in favour of the plaintiff by
the trial court. In the reasoning, the case of the plaintiff has been set out to
say that Suit No. 3656/81 (present suit) was filed for a different cause of
action than the earlier suit filed by the plaintiff (K.S. Setlur) for
reconveyance bearing Suit No. 94/56. That the present suit was filed by the
plaintiff in view of his dispossession in 1970. (see p. 153 of the SLP Paper
Book). According to the plaintiff, Iyenger had lost his suit for permanent
injunction. The appeal therefrom was ultimately disposed of on 14.12.1961.
Therefore, according to the plaintiff, up to 14.12.1961 Iyengar was not in
possession since in that suit the court came to the conclusion that Iyengar
was not in possession of the suit lands. That suit filed by Iyengar was Suit
No. 79/49 which came to be ultimately dismissed vide judgment dated
14.12.1961 delivered by Additional Civil Judge, Bangalore in RA No.
70/51. In the present suit, the plaintiff contended that he had entered into
settlement with Shyamala Raju in 1962-63; that on 23.4.1962 Shyamala
Raju had surrendered his possession and K.S. Setlur (plaintiff) was put in
possession, therefore, according to the plaintiff, he was in possession till
1962. (see p. 154 of the SLP Paper Book).
In the present suit, on the above pleadings and evidence, the trial court
came to the conclusion that it is around 1970 that the plaintiff stood
dispossessed when the LRs. of Iyengar executed two sale deeds on
21.5.1970 and 7.9.1970 in favour of defendant No. 1 and others and since
the present Suit No. 3656/81 stood instituted on 11.12.1981 it was within
time of twelve years. According to the trial court, in view of the judgment of
the trial court in the suit instituted by Iyengar bearing No. 79/49, K.S. Setlur
was in possession of the suit property till December, 1961 and that the
defendants had wrongly entered into possession in April/ September, 1970.
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On the merits, the trial court held that since the High Court had declared vide
its judgment dated 14.8.1981 in RSA No. 545/73 that Setlur was in
possession from 1946 to 1963 he had become owner by adverse possession
and since Setlur was dispossessed in 1970 the present Suit No. 3656/81 was
well within limitation. According to the trial court, in view of the judgment
of the High Court dated 14.8.1981 in RSA No. 545/73, defendant No. 1,
Narsimha Setty, did not get a valid title in respect of the suit lands.
According to the trial court, in view of the said judgment of the High Court
dated 14.8.1981 in RSA No. 545/73 there was no merit in the contention
advanced on behalf of the defendants that the said judgment of the High
Court dated 14.8.1981 was not binding on them since the High Court had
declared that K.S. Setlur had possessory title over the suit lands and in view
of the said findings the defendants Narasimha Setty and others had failed to
prove that they had derived valid title to the said suit lands under the above
two sale deeds dated 21.5.1970 and 7.9.1970 from the LRs. of Iyengar. The
trial court further observed that K.S. Setlur had instituted the said suit for
declaration and permanent injunction in 1981. That Suit was amended by
K.S. Setlur as plaintiff alleged that he was in possession in 1970 and that
subsequently the defendants had unlawfully entered into the suit lands. The
plaintiff accordingly amended the plaint. He sought possession. While
seeking possession, the plaintiff in his evidence stated that he was
dispossessed in 1970. According to the trial court, therefore, between 1946
and 1962-63, K.S. Setlur was in possession. He had possessory title. He was
in possession till 1970 when he was unlawfully dispossessed and in view of
the judgment of the High Court dated 14.8.1981 possessory title in the suit
lands had vested in K.S. Setlur (plaintiff). In the circumstances, the trial
court decreed the suit in favour of the plaintiff. The trial court declared that
Narsimha Setty did not derive title from the LRs. of Iyengar under the above
two sale deeds dated 21.5.1970 and 7.9.1970.
Aggrieved by the said decision of the trial court dated 11.10.1996, the
matter was carried in appeal by the LRs. of Iyengar and their alienees to the
High Court under section 96 CPC vide RFA No. 672/96. By the impugned
judgment dated 22.3.1999, the appeal filed by the defendants stood allowed
and the impugned judgment of the trial court was set aside. Hence this civil
appeal.
As stated at the outset, the present civil appeal is filed by the LRs. of
the deceased K.S. Setlur, the original plaintiff. This civil appeal arises out of
the judgment of the High Court dated 22.3.1999 in RFA No. 672/96 filed
under section 96 CPC.
It is urged on behalf of the appellants-plaintiff that the suit is based on
adverse possession. According to the appellants, Shyamala Raju was the
tenant of K.S. Setlur since deceased. According to the appellants, Shyamala
Raju had attorned the tenancy in 1946 in favour of K.S. Setlur. According to
the appellants, Shyamala Raju had surrendered possession to K.S. Setlur on
23.4.1962. According to the appellant, the High Court had categorically
declared vide judgment dated 14.8.1981 in RSA No. 545/73 that the
possessory title stood vested in K.S. Setlur. It is urged on behalf of the
appellants that Iyengar had also instituted a suit for permanent injunction
being Suit No. 79/49 in which it has been held that Iyengar was not in
possession of the suit lands but he was certainly entitled to file a separate
suit for declaration of his title. It was urged on behalf of the appellants that
despite liberty being given to Iyengar to institute a separate suit for
declaration on title, neither Iyengar nor his LRs. ever instituted a suit on title
and, therefore, the possessory title found by the High Court vide judgment
dated 14.8.1981 in favour of K.S. Setlur cannot be allowed to be reopened
in the present proceedings. It was urged on behalf of the appellants that the
trial court was right in coming to the conclusion that the possessory title
stood vested in K.S. Setlur. In this connection, reliance was placed on
judgment dated 14.8.1981 in RSA No. 545/73. According to the appellants
the LRs. of Iyengar, in the above circumstances, had lost their right to
recover possession. In this connection, the appellants placed reliance on
Section 27 of the Limitation Act, 1963. It was urged on behalf of the
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appellants that the impugned judgment is full of contradictions and
inconsistent findings. It was urged on behalf of the appellants that the matter
needs to be remitted back since there are fundamental errors in the impugned
judgment.
On the other hand, it is urged on behalf of the respondents-defendants
that the trial court has failed to appreciate that the judgment of the High
Court dated 14.8.1981 in RSA No. 545/73 arose from proceedings/ Suit No.
89/63 filed by K.S. Setlur against his alleged tenant, Shyamala Raju. In that
suit, the LRs. of K.S. Setlur were not made party defendants. According to
the respondents, the present Suit No. 3656/81 filed by K.S. Setlur was a title
suit for a declaration that the LRs. of Iyengar had no right, title or interest in
the suit lands and that they had no right to transfer/ alienate the suit lands in
favour of Narsimha Setty and others. According to the respondents, the trial
court has erred in treating the present suit as a suit based on adverse
possession. According to the respondents, the suit was based on title, it was
subsequently amended falsely alleging that the plaintiffs were forcibly
dispossessed. According to the respondents, K.S. Setlur was in fact
dispossessed in 1953. According to the respondents, the trial court had erred
in holding that K.S. Setlur was dispossessed in 1969-70. According to the
respondents, the trial court had erred in holding that the tenant’s possession
during 1946 to 1963 was the plaintiff’s possession, which, according to the
respondents, was a fundamental error in the judgment of the trial court.
According to the respondents, the judgment of the High Court dated
14.8.1981 was between K.S. Setlur and Shyamala Raju. In that proceedings,
LRs. of Iyengar were not party defendants and, therefore, the judgment of
the High Court dated 14.8.1981 was not binding on the
respondents. According to the respondents, the trial court had proceeded on
the basis of judgment dated 14.8.1981 which was not binding on the
respondents and even if it is assumed that the said judgment was binding on
the respondents even then the trial court had erred in holding that possession
of Shyamala Raju was the possession of Setlur in reckoning the period of
twelve years under Article 64 of the Limitation Act, 1963. It is urged on
behalf of the respondents that even in the suit for permanent injunction
instituted by Iyengar being Suit No. 79/49 the trial court has held that, even
though Shyamala Raju is found to be in possession, whether Shyamala Raju
was a tenant of Iyengar or K.S. Setlur was not fairly established and,
therefore, in none of the earlier proceedings it had been established that
Shyamala Raju was cultivating as a tenant of K.S. Setlur or as a tenant of
Iyengar. This question has never been conclusively decided and even if one
is to proceed on the basis that Shyamala Raju was a tenant of K.S. Setlur,
will the tenant’s possession be taken into account in calculating the period
of twelve years under Article 64 of the Limitation Act, 1963? These
questions, according to the respondents, have not been answered by the trial
court.
Section 27 of the Limitation Act, 1963 operates to extinguish the right
to property of a person who does not sue for its possession within the time
allowed by law. The right extinguished is the right which the lawful owner
has and against whom a claim for adverse possession is made, therefore, the
plaintiff who makes a claim for adverse possession has to plead and prove
the date on and from which he claims to be in exclusive, continuous and
undisturbed possession. The question whether possession is adverse or not is
often one of simple fact but it may also be a conclusion of law or a mixed
question of law and fact. The facts found must be accepted, but the
conclusion drawn from them, namely, ouster or adverse possession is a
question of law and has to be considered by the court.
As stated, this civil appeal arises from the judgment of the High Court
in RFA No. 672/96 filed by the original defendants under section 96 CPC.
The impugned judgment, to say the least, is a bundle of confusion. It quotes
depositions of witnesses as findings. It quotes findings of the courts below
which have been set aside by the High Court in the earlier round. It criticizes
the findings given by the coordinate Bench of the High Court in the earlier
round of litigation. It does not answer the question of law which arises for
determination in this case. To quote an example, one of the main questions
which arises for determination in this case is whether the tenant’s possession
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could be treated as possession of the owner in computation of the period of
twelve years under Article 64 of the Limitation Act, 1963. Similarly, as an
example, the impugned judgment does not answer the question as to whether
the decision of the High Court dated 14.8.1981 in RSA No. 545/73 was at all
binding on the LRs. of Iyengar/ their alienees. Similarly, the impugned
judgment does not consider the effect of the judgment dated 10.11.1961
rendered by the trial court in Suit No. 94/56 filed by K.S. Setlur against
Iyengar inter alia for reconveyance in which the court below did not accept
the contention of K.S. Setlur that the conveyance executed by Kalyana
Sundram Iyer in favour of Iyengar was a benami transaction. Similarly, the
impugned judgment has failed to consider the effect of the observations
made by the civil court in the suit filed by Iyengar for permanent injunction
bearing Suit No. 79/49 to the effect that though Shyamala Raju was in
possession and cultivation, whether he was a tenant under Iyengar or under
K.S. Setlur was not conclusively proved. Similarly, the impugned judgment
has not at all considered the effect of the Iyengar or his LRs. not filing a suit
on title despite being liberty given to them in the earlier Suit No. 79/49. In
the matter of adverse possession, the courts have to find out the plea taken
by the plaintiff in the plaint. In the plaint, the plaintiff who claims to be
owner by adverse possession has to plead actual possession. He has to plead
the period and the date from which he claims to be in possession. The
plaintiff has to plead and prove that his possession was continuous,
exclusive and undisturbed to the knowledge of the real owner of the land. He
has to show a hostile title. He has to communicate his hostility to the real
owner. None of these aspects have been considered by the High Court in its
impugned judgment. As stated above, the impugned judgment is under
section 96 CPC, it is not a judgment under section 100 CPC. As stated
above, adverse possession or ouster is an inference to be drawn from the
facts proved that work is of the first appellate court.
It is true that the litigation is pending for the last several years,
however, we are in agreement with the contention advanced on behalf of the
appellants that there are serious errors in the impugned judgment which
warrants interference under Article 136 of the Constitution of India. We do
not wish to express any opinion on the merits of the matter. Reasoning, if
any, given hereinabove, should not be read as our conclusion on merits.
For the reasons indicated above, without expressing any opinion on
the merits of the case, we allow this civil appeal, set aside the impugned
judgment of the High Court dated 22.3.1999 in RFA No. 672/96 and we
remit the case back to the High Court to decide the said RFA No. 672/96
de novo in accordance with law.
Since the above proceedings are pending from 1981 we request the
High Court to expeditiously hear and dispose of the appeal bearing No. RFA
672/96, preferably within three months from the receipt of this judgment.
Office is directed to send back records and proceedings to the High Court
expeditiously.