KAMANNA Vs. YENKAPPA

JUDGEMENT

(1.) THIS is a defendants appeal against the judgment and decree passed by Civil Judge (Sr.Dn) Shorapur, in R.A.No.45/2004 dated 22.8.2005. Facts leading to this case is the suit schedule property bearing Sy.No.179/2001 measuring 5 acres 35 guntas is situated at Devargonal village, Tq: Shorapur, Dist: Gulbarga. The said property was in the possession of the appellants who were the defendants before the Trial Court. The plaintiffs/ respondents herein filed a suit for possession in O.S.No.167/1988 on the file of Munsiff at Shorapur in respect of above property. Their case was, the first plaintiff is the owner of the suit property ever since the property fell to his share during a partition between himself and his brothers. Second and third plaintiffs are his sons. Defendants are the sons of his deceased brother Ningappa and the same was mortgaged in favour of one Mallappa and subsequently it was redeemed in 1957 -58. As the first plaintiff was working at Shorapur, the property was given to the possession of the first defendants father Ningappa for supervision. After the death of Ningappa, taking advantage of the fact that entries were wrongly written in the name of Ningappa, the defendants illegally occupied the suit land in 1981 . etc.

(2.) THE defendants/appellants contested the suit; their defence was, they are the owners in possession of the suit schedule property and the suit is barred by time; they have perfected their title by adverse possessions; the first plaintiff had executed an unregistered sale deed in favour of their father on 10.4.1960. Thereby they are in possession of the property openly continuously for 20 years and have became owners of the suit land on the basis of adverse possession for more than 12 years. After purchase of the land, defendants father and the defendants made improvements on the land. Hence this suit is filed to cause loss to the defendants. Subsequent to the death of their father because of the difference between the brothers, second defendant filed a suit against the first defendant in O.S.No.101/1988, which subsequently came to be compromised and the unregistered sale deed was filed in the said suit .

(3.) SRI Srivatsa, learned Senior Counsel for the appellants submits the Courts below did not notice the fact that the suit property was conveyed to the first defendant by first plaintiff under an unregistered sale deed dated 10.4.1960 but the suit was filed 28 years thereafter i.e. on 6.6.1988. The unregistered sale deed is admissible in evidence for collateral purpose. But the Courts below have erroneously held that it is not admissible in evidence. This is against the law laid down by the Apex Court in 1994 AIR(SC) 143 and PADMA VITHOBA CHAKKAYYA V/S MOHD MULTANI, 1963 AIR(SC) 70; Though the Trial Court held that the possession of the defendants is legal, recorded a contrary finding on other issues. The First Appellate Court has taken a tangent view that Section 53 -A of the Transfer of Property is not applicable though the defendants were in possession of the property. As per the plaint allegations after the death of the father of the defendants taking undue advantage of the entries in pahani pathrike defendants illegally occupied the suit land in 1981 on the pretext that defendant s father had paid amount to redeem the mortgage of the suit land from one Mallappa. The period prescribed for recovery of possession is six months from the date of dispossession as per Section 5 of Specific Relief Act.