MALATESH AND ORS. Vs. SHIVAYOGEPPA AND ORS.

JUDGEMENT

(1.) This is an unsuccessful plaintiffs' regular second appeal against the judgment and decree dated 21.7.2014 made in R.A. No. 127/2010 on the file of the II Additional District Judge, Haveri, sitting at Ranebennur, confirming the judgment and decree dated 6.8.2010 made in O.S. No. 150/2004 on the file of the Principal Civil Judge (Sr.Dn.) and Itinerant Court, Hirekerur dismissing the suit for declaration of title on the basis of adverse possession and for permanent injunction of the suit schedule properties.

(2.) It is the case of the plaintiffs that originally the suit schedule property i.e., Sy. No. 48 measuring 3 acres 34 guntas was belonging to the 1st defendant and the 1st defendant had agreed to sell the said property for a sum of Rs. 23,994/ - in favour of the plaintiffs in pursuance of the agreement dated 25.4.1985 and 1st defendant received an advance sum of Rs. 14,000/ - and had agreed to execute the sale deed by the end of March, 1986 by receiving the balance sale consideration of Rs. 9,294/ - but on the same day itself, the defendants had handed over the suit property to plaintiff No. 1 without receiving the balance sale consideration. The plaintiffs are in possession and enjoyment of the suit schedule property. After execution of the sale agreement, in spite of several request made, defendant No. 1 did not received the balance sale consideration from the plaintiffs. Since the date of sale agreement, the plaintiffs are in possession and enjoyment of the suit property as owners. The defendants having not complied with the sale agreement dated 25.4.1985, the agreement was thereby cancelled. Even thereafter, the 1st defendant did not obtain the possession of the suit schedule property from the plaintiffs and hence, the right of defendant No. 1 to claim possession of the suit property is barred by time. It was also contended that in the year 1986, the plaintiffs have denied the agreement orally by claiming that they are the absolute owners of the suit property. Hence, plaintiffs perfected their title over the suit property by adverse possession. It was contended that even now, the suit property is in possession of the plaintiffs. It is their further case that, out of the suit property measuring 2 acres 20 guntas of land, 1 acre 15 guntas of land was sold in favour of each of plaintiff Nos. 1 and 2 on 31.12.1993 under a registered sale deed, but the remaining 1 acre 4 guntas of land i.e., suit property is continued to be in possession of the plaintiffs since 1985. This being the fact, defendant No. 1 without obtaining possession of the suit property from the plaintiffs and with an intention to cause loss to the plaintiffs has sold the suit property in favour of defendant No. 2 on 22.12.2003 which came to be known by the plaintiffs recently. Therefore, the plaintiffs filed a suit for the relief sought for.

(3.) The 1st defendant remained absent and hence, he was placed exparte. Defendant No. 2 filed written statement denying the plaint averments and specifically contended that the suit property i.e., 1 acre 4 guntas of land on Northern side of Sy. No. 48/1 totally measuring 3 acres 34 guntas was in possession of defendant No. 1 as the owner; that defendant No. 1 had sold the same in favour of defendant No. 2 on 22.12.2003 for a sum of Rs. 61,000/ - under a registered sale deed and on the same day, defendant No. 1 had handed over the possession of the same to defendant No. 2 and hence, defendant No. 2 is in possession and enjoyment of the suit property since 22.12.2003 and the plaintiffs were never in possession of the same. It was further contended that towards North of the suit property, there is an ancestral property of defendant No. 2; that though the plaintiffs were in possession of the southern side of the suit property measuring 2 acres 30 guntas of land having been purchased from defendant No. 1 in the year 1993, they were never in possession of the northern side i.e., 1 acre 4 guntas i.e., the present suit property, at any point of time. It was also contended that defendant No. 2 is a bonafide purchaser of the suit property for a valuable consideration; that since the plaintiffs were aware of the sale deed having been executed in favour of the 2nd defendant had not challenged in the suit, the suit of the plaintiffs is not maintainable, etc., and hence, prayed for dismissal of the suit.