H M KRISHNA REDDY Vs. N K PARAMESHWARAN

JUDGEMENT

(1.) THIS second appeal is filed by the defendant challenging the legality and validity of the judgment and decree passed by the first appellate Court in R. A. No. 171/95 dated 27. 9. 1996 in affirming the judgment and decree passed by the Principal Second Munsiff Court, bangalore in O. S. No. 359/92 dated 21. 10. 1995 framing certain substantial questions of law for consideration of this Court in exercise of its power under Section 100 C. P. C.

(2.) FOR the sake of convenience, rank of the parties are referred to as per their ranking in the trial Court.

(3.) CERTAIN relevant brief facts which are necessary for the purpose of answering the rival contentions of the parties are stated as hereunder:-The plaintiff filed O. S, No. 359/92 on the file of the learned principal II Munsiff, Bangalore, for grant of judgment and decree declaring that he is the lawful owner of the suit schedule property noted as letters ABCDA in the rough sketch and for a direction to the defendant to handover the same; for grant of mandatory injunction for demolition of the hut put up which is described in the schedule-II of the plaint and noted as EFGH in the sketch; further for demolition of the two houses built which is referred to by letter ljkl and MNOP in the rough sketch No. 2 and described in the schedule as Item no. 3; for grant of decree in the nature of permanent injunction restraining the defendant from causing interference with regard to the peaceful possession and enjoyment of the property claiming that he is the absolute owner of the property in question by producing number of documents to substantiate his claim. The subject matter of the property was originally mentioned as Sy. No. 26/2 of Battarahalti village, Bidarahalli Hobli, Hoskote Taluk, which came to be amended by filing an amendment application as Sy. No. 26/2b measuring 1 acre 7 guntas. Further, it was contended that the land in question is a personal and miscellaneous inam land vested with the State government under the provisions of the Karnataka (Personal and miscellaneous) Inarms Abolition Act, 1954; that his vendor Sri muniswamappa claimed occupancy rights in respect of the land in question before the Special Deputy Commissioner for Abolition of inams, Bangalore, who in exercise of his power granted occupancy rights vide Ex. P. 2 dated 4. 7. 1960 and registered him as an occupant under the provisions of the Act, 1954; that thereafter his vendor was in possession and enjoyment of the property, his name was mutated in the revenue records; katha was entered in his name; that thereafter he sold the property in favour of the plaintiff vide registered sale deed dated 21. 5. 1973; that pursuant to the said sale deed he has been in possession and enjoyment of the property; that the defendant who has no title, interest upon the property tresspassed into the schedule property during the month of September, 1990 for which the plaintiff got issued a legal notice dated 27. 10. 90 as per Ex. P. 14; despite acknowledging the same, the defendant did not send any reply; therefore, he filed the original suit praying for the reliefs as indicated above. The claim of the plaintiff was seriously disputed by the defendants traversing all the plaint averments and contended that he has been in possession and enjoyment of the property land bearing Sy. No. 26/1 of Sheegehalli Village, K. R. Puram Hobli; that the said property measuring 5 acres 13 guntas belonged to his grandfather and he was in possession and enjoyment of the same and the identity of the suit schedule property was seriously disputed. The trial Court on the basis of the pleadings framed five issues at paragraph (14) of the judgment of the trial Court. To substantiate their claim, the plaintiff's power of attorney holder Mr. Beerappa was examined on 20. 3. 1985 and documents Exs. P. 1 to P. 33 were got marked. The defendant himself got examined as D. W. 1 and got marked Exs. D1 to D. 15. The trial Judge on appreciation of the evidence on record, while answering the contentious issues framed by it has categorically recorded a finding of fact holding that the plaintiff is the absolute owner of the property in question and granted the reliefs as prayed for in the original suit vide its judgment and decree dated 21. 10. 1995. Being aggrieved by the same, the defendant filed R. A. No. 171/95 under Section 96 CPC on the file of the II Addl. Civil Judge, Bangalore hereinafter called as first Appellate court urging various legal contentions including the ground that the judgment and decree is vitiated on account of the fact that the original suit is barred by limitation. On the basis of the rival contentions urged by the parties, the first appellate Court has formulated seven points for its determination and on appreciation of the evidence on record, with reference to the rival contentions points Nos. 1 to 3 and 7 framed by it are answered in the negative and point Nos. 4 to 6 were answered in the affirmative by recording its reasons on the points referred to supra at paragraphs 17 to 40 of the impugned judgment affirming the judgment and decree of the trial Court vide its judgment and decree dated 27. 10. 1996. Aggrieved of the said judgment and decree, the defendant has preferred this second appeal.