MALLAWWA Vs. MALAGIRIGOWDA

JUDGEMENT

(1.) This is an appeal by the unsuccessful defendant in the lower appellate Court. The plaintiff filed a suit for possession of the suit schedule property alleging that he is the owner of the property and the defendant was inducted as a tenant in the year 1638. The defendant in her written statement contended that she is the owner of the property. She denied the tenancy. She also stated that during her husband's life-time, the house was constructed by her husband. Her husband expired 40 years before the filing of tha written statement. On the basis of these pleadings, the trial court raised as many as six issues. The first issue was regarding ownership of the plaintiff. The finding on this issue is concurrent and it has been held that the plaintiff has proved his ownership.

(2.) The specific plea of the defendantwas that she perfected her title by adverse possession. In the written statement filed by the defendant no date is mentioned. Further, in addition to herself, two more witnesses were examined. Those witnesses say that when the defendant's husband wanted to undertake construction, the plaintiff objected to the construction and at that time the defendant's husband asserted that he is tha owner of the property Surprisingly no documents were produced by the defendant to adduce that she treated the property as her own. In other words, no tax receipts from the Municipality or records to show that the defendant has treated the property as her own. The trial Court dismissed the suit of the plaintiff holding the right to the property is not proved. In the appeal the appellate Court reversed that judgment holding that the defendant has failed to prove her plea that she has perfected her title by adverse possession for more than 12 years. The finding in this regard is concurrent. Therefore the only question that arises is whether the defendant has perfected the title by adverse possession. The evidence of D. Ws. 1, 2 and 3 by itself does not establish this fact. Not only there is inconsistency regarding the duration, there is nothing to show that the defendant has prefected her title by adverse possession. In these circumstances, the lower appellate coutt held that the defendant has failed to prove her possession by adverse possession and as such the plaintiff is entitled to a decree as prayed for.

(3.) It is no doubt true that thelower appellate Court has granted the decree, but as stated above, the plaintiff has come to the Court with an assertion that he is the owner of the property and the finding on this issue is in his favour. It was unnecessary to pass a decree for title because the basis of the suit is that the plaintiff is the owner of the property. Therefore it should be understood that the lower appellate Court has passed a decree as prayed for by the plaintiff. The plaintiff had not sought for declaration of title. Therefore the decree of the lower appellate Court should be understood as granting a decree for possession only. This position is clarified. In this view there is no merit in the second appeal and accordingly it is rejected. No costs.