VIRUPAKSHAPPA Vs. SHARANAPPA AND OTHERS

JUDGEMENT

(1.) The appellant filed O.S. No. 65 of 2000 in the Court of III Additional Civil Judge (Junior Division) at Gadag to pass a decree of declaration and injunction by adverse possession against the respondents. The defendants filed written statement and contested the suit. The Trial Judge raised six issues. Plaintiff got examined himself as P.W. 1 and examined two witnesses as P.Ws. 2 and 3 and marked 17 documents as Exs. P. 1 to P. 17. Defendant 1 got himself examined as D.W. 1 and two witnesses were examined as D.Ws.2 and 3 and a document was marked as Ex. D. 1. The Trial Judge on appreciation of the evidence brought on record, answered issue 1 i.e., the plaintiff having proved that the deceased Rudrappa executed agreement of sale in his favour on 1-10-1985 in the affirmative and issues 2 to 5 in the negative and the suit was dismissed. The plaintiff filed an appeal under Sec. 96 of Civil Procedure Code, 1908, registered as R.A. No. 145 of 2002, on the file of Senior Civil Judge and CJM at Gadag. The respondents appeared and attacked the finding entered on issue 1 and supported the conclusion of the Trial Court i.e., dismissal of the suit. On perusal of the record, five points were raised for consideration. At the time of hearing, a statement having been made by the learned Advocate that the appellant is not pressing the relief with regard to acquisition of title to the suit property by the plaintiff by adverse possession, Point No. 2 raised whether the appellant/plaintiff proves that he has perfected the title over the suit property by adverse possession' was held as not surviving for consideration. On independent assessment of the evidence, Appellate Judge held that the plaintiff failed to prove the execution of sale agreement dated 1-10-1985 and in pursuance of the same he being in possession and enjoyment of the suit property. It was held that the plaintiff failed to prove that decree passed in O.S. No . 270 of 1998 was collusive. It was further held that the judgment and decree passed by the Trial Court is sound and does not call for interference and the appeal was dismissed. Assailing the said judgments and decrees, the plaintiff hied this second appeal under Sec. 100 of CPC.

(2.) Sri Hanumanthareddy Sahukar, learned Advocate, firstly contended that the Trial Court having entered a finding that the plaintiff was put in possession of suit property by virtue of the agreement of sale and answered issue 1 in the affirmative, lower Appellate Court is unjustified in answering point No. 1 in the negative and in holding that the sale agreement is not proved. He submitted that the finding recorded on issue 1 by the Trial Court having not been assailed by the defendants by tiling cross-objection or an appeal, then Court below has committed illegality in holding that the sale agreement dated 1-10-1985 is not proved and the plaintiff is not in possession and enjoyment of the suit property. Secondly, there is no proper appreciation of evidence brought on record of the suit. He submitted that the plaintiff having produced credible evidence in proof of he being in possession and enjoyment of the suit property, the dismissal of the suit to the extent of claim made for passing decree of permanent injunction is illegal. He contended that the impugned judgments have given rise to substantial questions of law and call for interference.

(3.) The point for consideration are: