K N KRISHNAPPA Vs. T R GOPALKRISHNA SETTY

JUDGEMENT

(1.) The appellant was the 5th defendant in O.S. No. 22 / 1979 filed by the lst respondent for declaration of his title to the suit schedule property and for delivery of possession and also for past mesne profits of Rs. 1080/- and future mesne profits at the rate of Rs. 30/ - per month from the date of suit till delivery of possession. The suit was contested by the appellant and the 4th defendant inter alia on the grounds that the suit is barred under the provisions of Section 47, C.P.C., since the decree-holder purchaser should have obtained delivery of possession on the execution side within the period of limitation and that the suit is not maintainable. They also took the plea that they perfected their title by adverse possession.

(2.) The trial Court decreed the suit holding that the plaintiff became the owner of the suit schedule property by virtue of the purchase in the Court auction sale in Execution Number 6179/ 1956 and that the defendants are in wrongful possession of the same. It has further held that the suit was not barred under Section 47, C.P.C. The claim of the defendants that they acquired title by adverse possession was rejected. The appeal filed by the present appellant in R.A. No. 71 / 1989 was dismissed by the Principal District and Sessions Judge, Kolar, confirming the findings of the trial court, giving rise to this second appeal.

(3.) The facts, in brief, are hereunder. - The first respondent obtained a decree in O.S, 364/ 1953 for recovery of amount due on mortgage from K. Narasimha Naik - the father of defendant Nos. 1 to 5 and in execution of the decree, the suit property was brought to sale. The lst respondent was the auction purchaser, with permission of Court, in the auction held on 7-3-1957. The sale was confirmed on 19-4-1957 and a sale certificate was issued. The appellant and respondent numbers 2 to 5 remained in possession and enjoyment of the suit schedule property. Claiming that he became the owner of the property by virtue of the Court sale, the lst respondent filed the suit O.S. 22/ 1979 and his wife and children were impleaded as legal representatives after his death, during the pendency of the proceedings.