Topic: T.R. Srikantaiah Setty vs Balakrishna And Another

T.R. Srikantaiah Setty vs Balakrishna And Another
Equivalent citations: ILR 1999 KAR 2953, 1999 (5) KarLJ 153 - Bench: B Padmaraj - 7 April, 1999

JUDGMENT

1. The defendant 1 has filed this appeal against the judgment and ecree of the Trial Court whereby it decreed the suit of the plaintiff/respondent 1 declaring him to be the absolute owner of the suit property and directed the defendants to hand over the vacant possession of the suit property to the plaintiff and has also awarded costs. The appellant is defendant 1 while the respondent 1 is the plaintiff and the respondent 2 is the second defendant.

2. The plaintiff filed the suit for declaration that he is the owner of the suit property and for delivery of the suit property for him and also for mesne profits from 4-7-1975 to the date of delivery of the suit property. It is the case of the plaintiff that he purchased the suit property under a registered sale deed dated 21-7-1975 from its previous owner Padmavathamma. The said Padmavathamma also attorned over the tenants occupying the suit premises to the plaintiff. Two of the tenants accepted the attornment and have been paying rents to the plaintiff. The other two tenants refused to pay rents and the plaintiff filed SC Nos. 1958 and 1959 of 1975 on the file of the Court of Small Causes, Bangalore for the recovery of the rent and in that suit the second defendant claimed that he is the tenant of the first defendant and the first defendant claimed the property in his own right and hence the Small Causes Court directed the parties to settle their dispute in the original suit. Hence, this suit. The cause of action for the suit according to the plaintiff arose on 21-7-1975, the date of sale of the suit property in his favour from the previous owner Padmavathamma and on the subsequent dates when he proclaimed his title to the suit property. On these and other averments made in the plaint, the plaintiff sought for a declaration that he is the owner of the suit property and for recovery of possession of the suit property from the defendants. The first defendant by his written statement while admitting the proceedings on the file of the Court of Small Causes, Bangalore, has contended that the entire premises bearing No. 566, Burugal Mutt Road, V.V. Puram, Bangalore City was owned and possessed by Sri V. Ramaiah Setty, who was the father of his wife (father-in-law of the first defendant). His marriage took place in the year 1957 at Bangalore with the only daughter of the deceased V. Ramaiah Setty. At the time of their marriage, his parents-in-law had promised that a residential building would be given as a gift to his wife Smt. Pramila. In pursuance of the promise made by the parents-in-law at the time of their marriage to their only daughter Pramila, the property in question was given as a gift by way of Arasina Kunkuma to the said Smt. Pramila for the use and benefit of herself and her husband viz., the first defendant. The said gift was accepted and acted upon by the parties. The defendant 1 and his wife Smt. Pramila have been in occupation of the premises from the year, 1959. It is further contended that the premises is possessed and enjoyed by the first defendant and his wife continuously and uninterruptedly for over 18 years adversely to the interest of all persons including Sri V. Ramaiah Setty. According to the first defendant, it is his wife who is the absolute owner of the premises in question and she has perfected her title to the property by adverse possession. It is also contended that the possession of the wife of the first defendant and himself is continuous, open, hostile and adverse to the interest of all including that of the plaintiff. The first defendant denied that the suit property had been gifted by the deceased V. Ramaiah Setty in favour of one Padmavathamma who in her turn had sold the property to the plaintiff. In the additional written statement filed by the first defendant, he had further contended that the claim of the plaintiff is false, frivolous, vexatious and untenable. It is stated that the said Smt. Padmavathamma had no right, title or interest in the property in question and that she is in no way related to the deceased Ramaiah Setty. It is further reiterated that the property in question belongs to his father-in-law and that his wife who had been gifted of the said property by her father has perfected her title to the suit property by adverse possession. It is also contended that the said Smt. Padmavathamma did not acquire any right over the suit property under the alleged gift and that she had no alienable or transferable interest in the suit property. On these and other averments made in the written statement and in the additional written statement, the first defendant prayed for dismissal of the suit of the plaintiff.

3. The defendant 2 has filed his written statement wherein he has contended that to the best of his knowledge, the first defendant and his wife are the absolute owners of the premises in question and that he came to occupy a portion of the suit property as a tenant of the first defendant about nine years ago and he has been paying rents to the first defendant. He has further contended that there is no cause of action for the suit as against him and hence the suit of the plaintiff is highly misconceived and is liable to be dismissed.

4. The learned Trial Judge on consideration of the materials placed on record came to the conclusion that one Smt. Padmavathamma was the wife of the deceased Ramaiah Setty and that the said Ramaiah Setty had executed a gift deed in her favour in respect of the suit property under the gift deed Ex. P-9. The learned Trial Judge found that the evidence lead before the Court was more than sufficient to prove the execution of the gift deed Ex. P-9 by Ramaiah Setty in favour of his wife Padmavathamma. The Trial Court has observed in the course of its impugned judgment that the first defendant being not a legal heir of the deceased Ramaiah Setty cannot question the validity of the gift deed executed by his father-in-law V. Ramaiah Setty in favour of his wife Padmavathamma. It also recorded the finding that the suit property was conveyed absolutely to the plaintiff under the two deeds Exs. P-1 and P-2 and thereby the plaintiff has become the absolute owner of the suit property. With regard to the gift set up by the first defendant in favour of his wife, the Trial Court found that he has failed to prove thesaid gift. The Trial Court also came to the conclusion that under the circumstances in which the first defendant and his wife were residing in the suit property belonging to the above said Ramaiah Setty, their possession cannot be considered to be adverse and as such it recorded a finding that the defendant has utterly failed to prove that he and his wife have perfected their title to the suit property by adverse possession. In view of this finding that the plaintiff has acquired title to the suit property, it held that the plaintiff is entitled to recover possession of the suit property from the defendant. In this view of the matter, the Trial Court decreed the suit of the plaintiff for a declaration that he is the absolute owner of the suit property and directed the defendants to hand over the vacant possession of the suit property to the plaintiff. It is this judgment and decree of the Trial Court which has been challenged in this appeal by the first defendant. There appears to be no appeal filed by the second defendant against the said judgment and decree passed by the Trial Court.

5. Learned Counsel for the appellants has contended that the Trial court could not have decreed the suit of the plaintiff for a declaration that he is the absolute owner of the suit property when the plaintiff did not possess a valid right on the date of the suit and that the plaintiff appeared to have acquired title to the suit property under the sale deed Ex. P-2 which came into existence during the pendency of the suit before the Trial Court. While elaborating this submission, he contended that as on the date of the suit, even according to the plaintiff there was only a conditional sale deed in his favour as per Ex. P-1 and that being so, he could not have sought for a declaration that he is the absolute owner of the suit property. He also contended that the Trial Court failed to appreciate the specific contention of the appellant that the sale deed Ex. P-2 was invalid and inoperative and vitiated for non-passing of consideration in favour of Smt. Padmavathamma. He also contended that the Court below failed to appreciate the discrepancies in the evidence of P.Ws. 1 and 2 regarding passing of consideration for execution of Exs. P-1 and P-2 and that the said evidence being contrary to the recitals made in Exs. P-1 and P-2 clearly establishes that these documents were not genuine and they were invalid and hence no title to the suit property has been conveyed to respondent 1. He further contended that the Court below committed an error in not noticing that while P.W. 2 has deposed that there was an agreement entered before the execution of the sale deed Ex. P-2, while P.W. 1 has testified that there was no such agreement and this material discrepancy in the evidence of P.Ws. 1 and 2 clearly establishes that no title in the suit property was conveyed in favour of the respondent under Ex. P-2. He also contended that the Court below committed an error in holding that the first respondent has proved execution of the gift deed Ex. P-9 alleged to have been executed in favour of Smt. Padmavathamma by Ramaiah Setty. While elaborating this submission, he contended that the Court below failed to appreciate that in the absence of the evidence of the attesting witnesses to the gift deed, the execution of the gift deed cannot be held to be proved in accordance with law although it was registered. He also contended that the Court below has totally misread and misinterpreted the testimonies of P.Ws. 5 and 6 regarding the execution of the gift deed Ex. P-9 and the discrepancies therein which clearly establish that Ramaiah Setty had not executed the two documents Exs. P-9 and P-10 in favour of Smt. Padmavathamma. In this context, he also contended that the Court below committed an error in not appreciating the specific contention of the appellant that Ramaiah Setty had suffered paralytic stroke and the gift deed alleged to have been executed by him in favour of Smt. Padmavathamma was as a result of undue influence and fraud played upon Ramaiah Setty by the said Smt. Padmavathamma. According to the learned Counsel for the appellant, the Court below committed an error in holding that the appellant had failed to appreciate that Ramaiah Setty had gifted the suit property in favour of the appellant's wife by way of "Arasina Kunkuma" and in this context, it failed to appreciate the unimpeached testimonies of D.Ws. 1 and 2 which clearly establish that Ramaiah Setty had gifted the suit property in favour of wife of the appellant. He also vehemently contended that the Court below committed an error in answering the issue No. 4 against the appellant, thereby holding that the appellant had failed to prove that he and his wife had perfected their title to the suit property by adverse possession. He contended that the reasoning of the Court below that the appellant and his wife cannot claim title by adverse possession of the suit property since they had claimed the property under a gift is wholly erroneous as it is permissible for a person in law to take up an alternative plea of adverse possession, apart from claiming title in oneself. He also contended that the Court below failed to appreciate that the long, continuous, uninterrupted possession and enjoyment of the suit property from 1959 by the appellant was hostile and adverse to the interest of the whole world including the respondent and his predecessors in title, thereby establishing that the appellant and his wife had perfected their title to the suit property by way of prescription and adverse possession. He also contended that even assuming that the plaintiff has proved the gift deed and the sale deed and that the appellant is not entitled to claim adverse possession, the Civil Court has no jurisdiction to direct delivery of possession in view of the fact that the first respondent claimed the fist defendant to be a tenant in respect of the suit premises. He therefore contended that the Court below could not have decreed the suit of the plaintiff as prayed for.

6. As against this, the learned Counsel for the first respondent/plaintiff has contended that the appellant has no right to question either the gift deed or the sale deed. He contended that the appellant is not the legal heir of late Ramaiah Setty who was admittedly the owner of the suit property and hence he has no right to question either the gift deed made by the said Ramaiah Setty in favour of his wife Padmavathamma or the sale deed executed by Padmavathamma in favour of the plaintiff. He contended that the first respondent has been fighting litigation from the year 1977. According to the learned Counsel for respondent 1, there are four tenements in the suit property and in respect of two tenements there is no dispute and in so far as the remaining two tenements is concerned, one is in occupation of the appellant and another in the occupation of the respondent 2 and in this regard the first respondent had filed two suits for recovery of rents before the Court of Small Causes and in those two suits since the relationship was denied, the plaint was ordered to be returned and accordingly the first respondent brought the present suit for declaration and for recovery of possession. He contended that in so far as the second respondent is concerned, he did not dispute the fact that he was a tenant, but his claim is that he is a tenant under the appellant. He further contended that the second respondent has no grievance against the judgment and decree passed by the Trial Court and hence he has not filed any appeal. It is only the appellant who was defendant 1 before the Trial Court has challenged the judgment and decree made by the Trial Court. Learned Counsel for the fist respondent has contended that the suit property originally belonged to the deceased Ramaiah Setty who in his turn had gifted the property to one Padmavathamma, the vendor of the plaintiff and the said Padmavathamma in her turn has sold the same to the plaintiff. He contended that there is absolutely no basis for the appellant to say that there was a fraud played on the deceased by Padmavathamma who was none other than the wife of the said Ramaiah Setty. He also contended that the very fact that the deceased Ramaiah Setty had subsequently executed a rectification deed in favour of the said Padmavathamma would show that there was no fraud practised upon the deceased. He contended that though the donor Ramaiah Setty had been alive till the year 1979, he did not challenge the gift deed Ex. P-9 executed in favour of the above said Padmavathamma nor any of the legal heirs of the deceased Ramaiah Setty has challenged the said gift deed and that being so, the appellant who has no better right than that of the deceased Ramaiah Setty or any of his legal heirs cannot question the gift deed. He also contended that the discrepancies pointed out by the appellant do not affect the merits of the case of the appellant. He contended that the gift deed and the rectification deed stands proved from the circumstances placed on record and that, further the two documents Exs. P-1 and P-2 have been proved not only by examining the attestor, but also by the maker of the document viz., the above said Padmavathamma. He contended that the gift set up by the appellant in favour of his wife has not at all been proved by adducing any cogent evidence before the Trial Court. With regard to the plea of adverse possession taken by the appellant, he contended that the nature of possession of the appellant could only be regarded as permissive possession and in that view of the matter, the plea of adverse possession set up by the appellant is highly untenable. He concluded his argument by saying that the plaintiff has proved by the documentary and oral evidence placed on record that he is the absolute owner of the suit property while the appellant has failed to prove the plea taken by him in his written statement and hence the Trial Court was justified in decreeing the suit of the plaintiff.

7. In reply, the learned Counsel for the appellant has vehemently contended that there is absolutely no evidence regarding the marriage of P.W. 5 with the decreased and hence it cannot be believed. He also contended that the gift deed Ex. P-9 has not been proved in accordance with law and hence it cannot be looked into for any of the purposes. He also contended that when the alleged gift deed itself has not been proved, the question of plaintiff acquiring title to the suit property does not arise. He further contended that even assuming that the gift set up by the appellant has not been proved, but the fact that he has been in possession of the suit property from 1959 having been proved on the facts and circumstances of this case, was more than sufficient to establish the fact that the plaintiff had acquired title to the suit property by prescription.

8. Learned Counsel for the appellant has placed reliance upon the following decisions in support of his contentions:

1. Karnataka Wakf Board, Bangalore v State of Karnataka and Others, .

2. Kempamma vHonnamma, 1979(1) Kar. L.J. Sh.N. 85.

3. Anant Somappa Pattar v Kalappa Deuendrappa Yarakad, .

4. Smt. Mallo v Smt. Bakktawari and Others, .

5. T.N. Narayanackar and Others v V.S. Venkatanathan and Others, 1961 Mys. L.J. 794.

6. Smt. Govindamma v Murtigesh Mudaliar and Others,

.

7. Alia Baksh v Mohammed Hussain and Another, 1996(2) Kar. L.J. 336.

8. A. Venkatesha v Ganganapalli Ramakka, 1981(2) Kar. L.J. 24.

9. Kumbara Narasimhappa v Lakkanna and Another, 1959 Mys. L.J. 122 : AIR 1959 Mys. 148.

10. .

11. M/s. Sikka-N-Sikka Engineers (Private) Limited, Bangalore u M/s. Cargo Transports, Bangalore, 1991(2) Kar. L.J. 196.

12. Laxmibai v Thoreppa, .

13. Takri Devi v Smt. Rama Dogra and Others, .

9. Learned Counsel for the respondent has relied upon the following decisions in support of his contentions:

1. Danappa Revappa Kolli v Gurupadappa Mallappa Pattanshetti, .

2. Thakur Kishan Singh (dead) by L.Rs v Arvind Kumar, .

3. Parwatabai v Sonabai and Others, .

4. Mohammad Baqar and Others v Naim-un-Nisa Bibi and Others, .

5. D.N. Venkatarayappa v State of Karnataka, .

6. Mannalal v Radheyshyam and Another, AIR 1974 Raj. 16.

7. Kamakshi Ammal v Rajalakshmi and Others, ,

10. In the face of the above contentions of the parties and in the light of the principles enunciated in the decisions relied upon by both sides, the point for consideration is whether the appeal deserves to be allowed.

Regarding the marriage of P.W. 5-Padmavathamma and the deceased Ramaiah Setty:

11. P.W. 5 has stated in the course of her evidence that the deceased Ramaiah Setty was her husband. She was married to the deceased in the year 1968 at Tirupathi. She was the third wife of the deceased. Under the cross-examination, she has stated that prior to her marriage with the deceased, he was doing business in Chamarajpet. She was 23 years at the time of her marriage with the deceased. The deceased was elder to her by about 20 or 30 years. That is to say the deceased was elder than P.W. 5 by 20 or 30 years and she was the third wife of the deceased. Her father was doing business in Idly and Dosa at the time of her marriage with the deceased. She has further stated in the cross-examination that her marriage with the deceased took place on 6-12-1968, but no wedding invitation cards were printed. Having obtained such answers in the cross-examination, there is no suggestion to P.W. 5 that she is not the legally married wife of the deceased or that their marriage was either invalid or illegal. On the other hand the trend of the cross-examination to P.W. 5 would reveal that it has proceeded on the assumption that P.W. 5 was the wife of the deceased Ramaiah Setty. The father of P.W. 5 had been examined in Court as P.W. 4, but unfortunately he died before he could be cross-examined by the defence. It would appear from his deposition which is found at paper book page 106 that after his chief-examination was completed, the cross-examination was deferred at request to a further date. That would obviously mean that the cross-examination was deferred at the request of the learned Counsel for the defendants. It is not in dispute that P.W. 4 having died subsequently, he could not be made available for cross-examination by the defendants.

In this context, it may be mentioned that when a witness dies after the examination-in-chief and before cross-examination, the evidence is admissible, but its probative value may be very small and may even be disregarded. But if the examination is substantially complete and the witness is prevented by death from finishing his testimony, it ought not be rejected entirely. In my view, the testimony of a witness whose cross-examination is not evaded or deliberately prevented and became impossible by reason of his death, sickness or other causes mentioned in Section 33 of the Evidence Act, can be treated as evidence and the Court should carefully see whether there are indications that by completed cross-examination, the testimony was likely to be seriously shaken. In my view, therefore, the evidence of the witness is admissible if cross-examination is not evaded or deliberately prevented by the parties. Death or illness before cross-examination makes the evidence in-chief admissible though its weight may be slight. Therefore, no general rule can be laid down in respect of unfinished testimony of a witness. If substantially complete and the witness is prevented by reason of his death from completing or finishing his testimony, it ought not to be rejected entirely, but the Court should carefully see whether there are indications that by completed cross-examination, the testimony was likely to be seriously shaken. In the instant case, P.W. 4 in his chief-examination has stated that the marriage of his daughter P.W. 5 with the deceased Ramaiah Setty had been performed at Tirumala hills on 6-12-1968 and to substantiate the said fact, he had also produced or placed on record the document Ex. P-16. He has further stated that the deceased and her daughter have both signed this document at Ex. P-16(a) and (c). Though P.W. 4 calls this document Ex. P-16 to be an invitation, it actually appears to be in the nature of a marriage certificate issued by the temple authorities in proof of the marriage having been performed or taken place at the temple. Obviously for this reason, the document Ex, P-16 bears the signature of both the deceased and the wife viz., the deceased Ramaiah Setty and the Padmavathamma P.W. 5. So far as this statement of P.W. 4 is concerned, it could not have been shaken in the cross-examination because even the defendants have obtained answers from P.W. 5 in her cross-examination that her marriage with the deceased was performed or celebrated on 6-12-1968. She has stated that their marriage took place at Tirupathi which has not been challenged in the cross-examination. That apart, the evidence of P.W. 5 gets corroboration from an independent witness like P.W. 6. It has to be pointed out that P.W. 6 was aged about 72 years on the date of his evidence in Court and he was an Advocate by profession. Though this witness P.W. 6 has not stated anything regarding the marriage of P.W. 5 with the deceased in his chief-examination, but in the cross-examination the defendants themselves have obtained or invited certain answers which clearly goes to show that P.W. 5 was the third wife of the deceased. He has stated in the cross-examination done by the defendants that to his knowledge the deceased Ramaiah Setty had three wives and that he knew the fact that P.W. 5 Padmavathamma was the wife of the deceased as he had received wedding invitation for the said marriage.

He has also stated that he does not remember in whoso name the wedding invitation cards were printed. There is nothing to show that P.W. 6 has received the wedding invitation card to attend the marriage of the deceased Ramaiah Setty with his wife P.W. 5 and on the other hand his evidence is only to the effect that he had received invitation to attend to the marriage of the deceased. Therefore, I find no such material discrepancy in the evidence of P.W. 6 and the other evidence on record so as to reject the testimony of P.W. 6 regarding the marriage of the deceased with P.W. 5. There may be some discrepancy regarding the age of P.W. 5 at the time of her marriage with the deceased, but the positive answer obtained by the defendants themselves in the cross-examination of P.W. 5 is that she was aged about 23 years at the time of her marriage and this statement made by P.W. 5 has not been challenged further in the cross-examination. That apart, even the recitals of the two documents Exs. P-9 and P-10 which were alleged to have been executed by the deceased Ramaiah Setty would show that P.W. 5 is the wife of the deceased Ramaiah Setty. I am therefore of the clear view that there is ample material on record to show that P.W. 5 Padmavathamma had been married to the deceased and she is the widow of the deceased Ramaiah Setty. The fact that the deceased Ramaiah Setty had married Padmavathamma-P.W. 5 has been clearly spoken to by the said Padmavathamma herself and also her father. Besides the evidence of P.Ws. 4, 5 and 6, there is the evidence in the form of the recitals in the gift deed Ex. P-9 and in the rectification deed Ex. P-10 wherein the donor viz., the deceased Ramaiah Setty himself has described the donee Padmavathamma as his wife. It is to be seen therefore that the person who has married Padmavathamma viz., P.W, 5 has spoken through the documents executed by him in favour of the said Padmavathamma that she is his wife and the person who has actually married the deceased Ramaiah Setty viz., P.W. 5 has also spoken on oath that she is the wife of the deceased. Therefore, there is acceptable evidence to show that the deceased Ramaiah Setty had married the said Smt. Padmavathamma P.W. 5 as his third wife. That apart, as I have already noticed, the trend of the cross-examination made by the appellant to P.W. 5 and others would reveal that the cross-examination has proceeded on the ground that she is the wife of the deceased. Hence, I find no merit in the contention of the learned Counsel for the appellant that P.W. 5 is not the wife of the deceased Ramaiah Setty.

Regarding the gift deed Ex. P-9:

12. P.W. 5 who is the wife of the deceased Ramaiah Setty, has stated that her husband had gifted the suit property to her during his life time in the year 1971 and she had accepted the said gift. The same is evidenced by a registered deed of gift which is as per Ex. P-9. She has further stated that it contains her signature as well as the signatures of Seetharamaiah and Venkataramana Setty, who were the witnesses to the gift deed Ex. P-9, It is not in dispute that both these witnesses who had attested the gift deed Ex. P-9 have expired. Of the two witnesses who had attested the gift deed Ex. P-9, one of them viz., V. Seetharamaiah has died before he could be examined in the Court while the other attestor Venkataramana Setty-P.W. 4 had died after he was examined in-chief in Court. That is to say P.W. 4's cross-examination having been deferred at request, he had died and hence his cross-exami-nation could not be done. In his chief-examination P.W. 4 has stated about the execution of the gift deed by the deceased as well as his having attested the gift deed Ex. P-9. It has to be stated that the requirement of examining at least one of the attesting witnesses is to be fulfilled if there be a attesting witness alive. Where the attesting witnesses are dead, the gift deed can certainly be proved in the manner provided for proof of a document. If the attesting witnesses are dead, two things must be proved viz., the signature of one attesting witness and the signature of the executant. They may be proved in the manner as indicated in Section 67 of the Evidence Act by the evidence of the persons who are able to prove the handwriting of the attestor and of the executant. Such proof of handwriting and signature is prima facie sufficient and on proof of such fact, it must be presumed that everything was rightly done. Section 69 of the Evidence Act relaxes strict proof of execution and attestation as required under Section 68. The words used in Section 69 is signature and not execution and so when some kind of proof is given of executant's signature and the handwriting of one attesting witness, due execution is presumed. Of course there should also be some identity as to the executant. This Section 69 of the Evidence Act conies into operation when no attesting witness can be found as in the present case. In the instant case, it is not in dispute that both the attesting witnesses to the gift deed Ex. P-9 could not be found by reason of their death and hence Section 69 of the Evidence Act conies into play.

Therefore, if proof is given of the signature of the attestor as well as of the person executing the gift deed Ex. P-9, it may be considered to be most satisfactory. In this case, even the executant is dead and the person disputing the document is the son-in-law of the deceased. None of the legal heirs of the deceased Ramaiah Setty seem to have disputed the execution of the gift deed by the deceased Ramaiah Setty in favour of P.W. 5. Therefore, here is a case where the executant as well the attestors to the gift deed Ex. P-9 are all dead and it is only the donee who is alive and has given evidence in Court in proof of the gift deed Ex. P-9. In the said situation, there is no rule of law which prevents the Court from holding the execution proved when the signatures of the attesting witnesses are proved to its satisfaction having regard to all the circumstances of the case. Where the executant and the attestors to the gift deed Ex. P-9 are all dead, in my view proof of his signature and the signatures of the two of the attesting witnesses are in their handwriting raises a presumption of due execution and was sufficient unless rebutted. In the instant case, the gift deed Ex. P-9 is alleged to have been executed by the deceased Ramaiah Setty and attested by the two attestors Seetharamaiah and Venkatarama Setty P.W. 4. P.W. 5 is none other than the wife of the executant and the daughter of the attestor P.W. 4. She has also signed the document Ex. P-9 for having accepted the gift deed. She has stated that Seetharamaiah and her father P.W. 4 were the witnesses to the gift deed Ex. P-9. Regarding the execution of the gift deed Ex. P-9, this is what P.W. 5 would further say in his cross-examination.

"At the time of Ex. P-9 my husband was keeping in good health. After about 15 days after my marriage my husband told me that he will execute gift deed. He told me that Srikantaiah Shetty and his wife will make galata and hence he will execute a gift deed in my favour. I do not remember how many days after his telling so, he executed Ex. P-9. One Advocate Ramasastry prepared Ex. P-9. I do not know whether hat Advocate is alive. After executing Ex. P-9, I have not seen Advocate Ramasastry. I do not know where he had written Ex. P-9. My father got the Advocate at the instance of my husband. Ramasastry was present in the Sub-Registrar's office. I saw the Advocate for the first time on that day. My husband signs in English. Seetharamaiah signs in English. My father also signs in English. Ramasastry did not read the document No. 17/A Murugal Mutt comes in rear side. No. 17 Sajjan Rao Road is the main building. At that time of Ex. P-9, I was staying in the main house. Sub-Registrars did not question my husband about Ex. P-9. My husband signed first and thereafter I signed. The document was typed by the time I went. We signed the document at about 12-30 p.m. My husband presented the document for registration. After about 25 days, my father brought the document. In 1974, at the time of paying tax I came to know that there is a difference in address in Ex. P-9 and therefore, we had to make the amendment deed. I and my father had gone to pay the tax. I paid the tax. But I do not know how much I paid. I took the receipt. Now I do not have the said receipt. At the time of amendment deed also, my husband was keeping in good health. I do not know who has prepared the said deed. I do not know when the khatha was transferred to my name, after the amenmdnet deed. I had gone to Sub-Registrar's office at the time of rectification deed. I do not know in which language it was written and I do not know whether it was typed. I do not know who witnessed that deed. My father had also accompanied me at the time of rectification deed. I do not know whether Seetharamaiah was present or not. My father got the document. But I do not know for how many days after registration he got the deed. Nobody was paying rent from the date of gift deed until I sold the property to plaintiff.

13. Then it was suggested to P.W. 5 in the cross-examination that they have got fabricated the gift deed Ex. P-9 at the time of ill-health of the deceased Ramaiah Setty and that the same had been obtained by playing fraud. Both these suggestions have been clearly denied by P.W.

5. It is relevant to note that the evidence of P.W. 5 that her husband has signed the gift deed Ex. P-9 and that one Seetharamaiah and her father P.W. 4 were the two attestors to the gift deed has not been seriously challenged in the cross-examination by the defence. That apart, it is relevant to note that in this case there is also a rectification deed Ex. P-10 which was subsequently executed by the deceased Ramaiah Setty in favour of P.W. 5. P.W. 5 has clearly spoken to this fact in her evidence. She has stated that as there was some difference in door number, the khatha could not be transferred to her name and she told this fact to her husband. Thereafter, her husband Ramaiah Setty got executed a rectification deed which is as per Ex. P-10. She has also stated that the rectification deed Ex. P-10 bears the signature of her husband as per Ex. P-10(a), (b), (c) and (d). After the said rectification deed was executed, the khatha was transferred her name. There appears to be no serious cross-examination on this point. Thus the evidence of P.W. 5 would show that subsequent to the execution of the gift deed, the executant had executed a rectification deed Ex. P-10 in the circumstances as stated above and this document Ex. P-10 further confirms the execution of the gift deed Ex. P-9 by the deceased in favour of P.W. 5. That apart, there is the evidence of P.W. 6 who has drafted the gift deed Ex. P-9. He has stated that he knew the deceased P. Ramaiah Setty and he had drafted the gift deed for Ramaiah Setty which is as per Ex. P-9. He has further stated that he had accompanied the deceased to the office of the Sub-Registrar at the time of registration of the gift deed Ex. P-9 and identified the signature of the deceased as per Ex. P-(d). Thus P.W. 6 has clearly identified the signature of the executant of the gift deed Ex. P-9 as per Ex. P-9(d). As already noticed by me, P.W. 6 is an Advocate and an independent witness. There is no reason for P.W. 6 to come and depose falsely against the appellant. He has further stated in his cross-examination regarding the gift deed which reads thus:

"At the time of gift deed Ramaiah Setty was abut 50 to 55 years old. I had seen the documents pertaining to the property mentioned in the gift deed. I had prepared draft of gift deed. And there after sent it for typing. About 10 or 15 days prior to the gift deed Ramaiah Setty had instructed me to prepare gift deed. I was given instructions in both office as well as in my house. He came along for giving instruction. I was knowing the fact that Padmavathamma was his wife, as I had received wedding invitation for marriage. Ramaiah Setty had one brother by name Venkatananjaiah Shetty. I do not remember in whose name the wedding invitation was printed.

The attestors to the gift deed were Venkatarama Setty and Seetharama. I was knowing Venkataramaiah Setty from three years prior to gift deed. The Seetharama was my tenant. I prepared the draft of the deed immediately after receiving instructions. At the time of instructions the attesting witnesses were not present. Before giving instruction to gift deed he had not told me about his intention to gift. After preparing draft I handed over draft to Ramaiah Setty and asked him to get type. I had told to Ramaiah Setty that two witnesses are necessary for gift deed. Venkataramaiah came at 12 noon and took me to Sub-Registrar office. By about within 10 minutes I reached the Sub-Registrar office. At that time the Sub-Registrar was looking into the document. Venkataramaiah Shetty had told me that Ramaiah Setty was waiting for me in the Sub-Registrar office. In Sub-Registrar office apart from myself, Mr. Ramaiah Setty, his wife Padmavathamma, Seetharamaiah, Venkataramaiah Shetty were present. I had seen Padmavathi on that day only. Ramaiah Shetty told me that he got the deed typed as per the draft. I do not remember whether I have endorsed in the deed as "Drafted by me". I identified after Ramaiah Shetty signed the deed. Apart from identification I had inserted the word "donor" and donee which were left out. Now I see Ex. P-9 there is only word by name donee but no word as donor written by me.

14. P.W. 6 has further stated in his cross-examination that the deceased Ramaiah Setty was hale and healthy and he had lived for about 7-8 years even after the execution of the gift deed. He has clearly denied the suggestion that at the time of the execution of the gift deed Ex. P-9, the deceased Ramaiah Setty was not capable of understanding the things. It is to be seen therefore that in this case the signatures of the executant as well as the attestor P.W. 4 to the gift deed Ex. P-9 stands proved from the evidence on record. Besides, the gift deed Ex. P-9 gets corroboration or support from the rectification deed Ex. P-10, which was subsequently executed by the deceased Ramaiah Setty. Therefore, in this case, the requirements of Section 69 are fully satisfied. Therefore, regarding the execution of the gift deed Ex. P-9, it has to be stated that when all the attestors to the gift deed having been dead, the gift deed can certainly be proved in the manner as provided for proof of a document. The evidence of P.W. 6 clearly proves the gift deed Ex. P-9. That apart, the subsequent execution of the rectification deed Ex. P-10 also substantially supports the proof of the execution of the gift deed by the deceased Ramaiah Setty. If really the gift deed Ex. P-9 had been obtained by practising fraud upon the deceased, it is difficult to believe that the deceased Ramaiah Setty could have subsequently executed the rectification deed Ex. P-10. The very fact that the deceased had subsequently executed a rectification deed and the very fact that the gift deed Ex. P-9 has not been challenged by the deceased during his life time or any of his legal heirs after his death, would confirm the execution of the gift deed in favour of P.W. 5. It is not in dispute that even after the execution of the gift deed, the deceased Ramaiah Setty was alive and he did not seem to have challenged the gift deed during his life time and on the contrary he went on to execute the rectification deed Ex. P-10. Even after his death, none of the legal heirs of the deceased who are entitled to succeed to the estate of the deceased have challenged the gift deed Ex. P-9. Under the circumstances, therefore, the appellant who has no better right than the deceased himself or any of his legal heirs, cannot in my view challenge the execution of the gift deed in favour of P.W. 5. To conclude therefore, the gift deed Ex. P-9 stands proved by the direct evidence of P.Ws. 5 and 6 and also indirectly by an admission made by the deceased himself in the form of rectification deed Ex. P-10 that has been subsequently executed in favour of P.W. 5 confirming the execution of the gift deed Ex. P-9.

Therefore, I am of the clear view that the gift deed Ex. P-9 has been legally proved as contemplated under Section 69 of the Evidence Act. Therefore, the gift deed Ex. P-9 stands proved from the evidence placed on record. Hence, I am unable to accept the contention of the learned Counsel for the appellant that the gift deed Ex. P-9 is not proved in accordance with law. It would be of some relevance to note further that the contents of this gift deed Ex. P-9 which stands proved under Section 69 of the Evidence Act would show that P.W. 5 is the wife of the deceased Ramaiah Setty. The said gift deed Ex. P-9 as I have already pointed out is in the nature of admission made by the deceased with regard to the status of P.W. 5 as the wife of the deceased Ramaiah Setty. Therefore, the gift deed Ex. P-9 and the rectification deed Ex. P-10 apart from proving the fact that P.W. 5 is the wife of the deceased, they would also prove that the suit property had been gifted by the deceased Ramaiah Setty in favour of P.W. 5 and the same has been accepted by her. It is not in dispute that the deceased Ramaiah Setty was an absolute owner of the suit property and he was quite competent to make a gift of the suit property to whomsoever he desire. The evidence of P.W. 6 as well as the evidence of P.W. 5 and the rectification deed Ex. P-10 would amply establish the fact that the gift deed Ex. P-9 was executed by the deceased when he was in full senses. Therefore, I am unable to accept the contention of the learned Counsel for the appellant that the gift deed Ex. P-9 is a result of fraud played upon the deceased by P.W. 5. It is to be concluded therefore that the deceased Ramaiah Setty who was the absolute owner of the suit property, had gifted the same to his own wife P.W. 5 under the gift deed Ex. P-9 and thus conferred an absolute right in her favour in respect of the suit property.

Regarding the sale of the suit property to the plaintiff by P.W. 5:

15. As I have already stated it is not in dispute that the deceased Ramaiah Setty was the original owner of the suit property. The said Ramaiah Setty had gifted the suit property to his wife P.W. 5 under the registered gift deed Ex. P-9 and the same was duly accepted by P.W. 5. Thus P.W. 5 had acquired a valid title to the suit property under the gift deed Ex. P-9 and became the absolute owner of the same. It is also in the evidence of P.W. 5 that the deceased had subsequently executed the rectification deed as per Ex. P-10 as there was some difference in the door number and hence the khatha could not be transferred to her name. Consequent upon the execution of the rectification deed Ex. P-10, it appears that the khatha had been duly transferred in the name of P.W. 5 in respect of the suit property. Then it is the specific case of the plaintiff that P.W. 5 who had acquired title to the suit property under the gift deed Ex. P-9 executed by her husband, had in her turn sold the suit property to him under the registered sale deed Ex. P-1 and Ex. P-2. Of these two documents, Ex. P-1 and Ex. P-2, the earlier one was a conditional sale deed while the latter one was an absolute sale deed. The plaintiff thus claims to be an absolute owner of the suit property on the basis of these documents Exs. P-1 and P-2. Now, regarding the execution of the two sale deeds Exs. P-1 and P-2 in favour of the plaintiff, the executant or the maker of deeds viz., P.W. 5 herself has stepped into the witness box and gave evidence on oath that she had executed the sale deeds in favour of the plaintiffs. Thus P.W. 5 herself has admitted the execution of the sale deed in favour of the plaintiff. P.W. 5 has clearly stated in her deposition that she had agreed to sell the suit property for Rs. 55,000/- and received the entire consideration amount from the plaintiff. She has also stated that she had mortgaged the property in favour of the plaintiff for Rs. 20,000/- and thereafter she sold the suit property for Rs. 55,000/- which was inclusive of the mortgage amount of Rs. 20,000/-. She received the balance of consideration of Rs. 35,000/- in presence of the Sub-Registrar. She has clearly admitted in her evidence that she has received the entire consideration amount of Rs. 55,000/- from the plaintiff and conveyed the suit property absolutely in favour of the plaintiff. The plaintiff who gave evidence as P.W. 1 has stated that he purchased the suit property from P.W. 5 earlier under the conditional sale deed and thereafter a regular sale deed was executed in the year 1978. He has produced the conditional sale deed which is as per Ex. P-1 and also the absolute sale deed which is as per Ex. P-2. the plaintiff also has placed on record the Encumbrance Certificates and the tax paid receipts in respect of the suit property which are as per Exs. P-4, P-5 and Exs. P-6 to P-8. He has further produced the endorsements issued by the Corporation for having transferred the khatha in the name of P.W. 5 and subsequently to the name of the plaintiff which are as per Exs. P-11 and P-12.

It appears that P.W. 1 has got sanctioned the plan from the Corporation for his proposed construction which is as per Ex. P-13. Under the cross-examination, he admits that on the date of the conditional sale deed Ex. P-1, he was only a student. He has further stated in the cross-examination that Padmavathamma and her father P.W. 4 had brought with them the title deeds pertaining to the suit property viz., the gift deed and the rectification deed and they gave both these documents to him. He has also stated in the cross-examination that when he asked P.W. 5 as to why she is selling away the suit property, he was told by her that as she is not getting any rent from the suit property and that further the first defendant (the appellant herein) had made some galata and that as she needed the money for the maintenance of the family, she is selling the suit property. P.W. 1 has also stated in his cross-examination that the reason as to why the conditional sale deed had been executed was that he had only a sum of Rs. 20,000/ at that time. When he approached P.W. 5 for purchase of the suit property, the price agreed between them was Rs. 55,000/- and at that time he had no money to pay the entire consideration amount to obtain the sale deed. Accordingly, P.W. 1 appears to have paid a sum of Rs. 20,000/- and obtained a conditional sale deed as per Ex. P-9 from P.W. 5 and subsequently when he paid the balance of sale consideration to P.W. 5, he obtained an absolute sale deed as per Ex. P-2 in his favour. The conditional sale deed Ex. P-1 would reveal that under the said deed, P.W. 5 who was in need of money for her legal and family necessity, received a sum of Rs. 20,000/- and executed the conditional sale deed in favour of the plaintiff. It was stipulated therein that P.W. 5 shall return the amount within 10 years and to obtain a sale deed in her favour. It is to be seen therefore that under the sale deed Ex. P-1, the plaintiff had purchased the property from P.W. 5-Padmavathamma on condition that if the said P.W. 5 were to return the consideration amount paid under the sale deed within a period of ten years, the property shall be reconveyed to P.W. 5. But it appears that subsequently Padmavathamma-P.W. 5 instead of returning the consideration amount of Rs. 20,000/- mentioned under the sale deed Ex. P-1 and obtaining a reconveyance, has further received a sum of Rs. 35,000/- over and above the amount that was received by her under Ex. P-1 and executed an absolute sale deed in favour of the plaintiff and thereby the plaintiff has become an absolute owner of the suit property. Therefore, what was a conditional sale deed at the time of filing of the suit has become an absolute sale deed during the pendency of the suit. Thus in the instant case, it is to be seen that what was only a conditional sale at the time of filing of the suit has become an absolute sale during the pendency of the suit in view of the fact that P.W. 5 who had a right to pay or return the consideration amount of Rs. 20,000/-mentioned in Ex. P-1 and obtain a reconveyance in her favour, has received a further amount of Rs. 35,000/- from the plaintiff and executed an absolute sale deed in favour of the plaintiff. The sale being a conditional sale, P.W. 5 instead of complying with the condition, has received a further amount of Rs. 35,000/- and executed an absolute sale deed as per Ex. P-2 and thereby conferred an absolute right upon the plaintiff. In view of the specific evidence of P.W. 5 herself, it is obvious that the plaintiff has become the absolute owner of the suit property. It is no doubt true that the sale deed Ex. P-2 appears to have been executed by P.W. 5 during the pendency of the suit. But that by itself does not mean that the plaintiff had no title to the suit property to seek a declaration in his favour.

When the plaintiff filed the suit, the document that was executed in his favour by P.W. 5 was Ex. P-1 and even according to this Ex, P-1, the plaintiff had purchased the suit property, but on a condition that if P.W. 5 were to return the consideration amount paid by the plaintiff within a period of 10 years, the property shall be reconveyed to her and when the said P.W. 5 received a further amount of Rs. 35,000/- and executed an absolute sale deed Ex, P-1, she has foregone or forfeited the right that was reserved to her seeking reconveyance within 10 years under Ex. P-1. Apart from the evidence of P.Ws. 1 and 5, there is also the evidence of P.W. 2, the attestor to the sale deed Ex. P-1 and P.W. 3, the father of the plaintiff, which amply corroborates the evidence of P.Ws. 1 and 5. Therefore, on the facts and circumstances of the case and in view of the positive evidence on record regarding the sale of the suit property by P.W. 5, it stands proved that the suit property has been conveyed to the plaintiff under the above two documents Exs. P-1 and P-2 by the erstwhile owner P.W. 5 and thereby the plaintiff acquired an absolute right in respect of the suit property. Therefore, the plaintiff was certainly entitled to a declaration in his favour that he is the owner of the suit property. From the materials placed on record, it stands proved that the plaintiff is the absolute owner of the suit property. Hence, he was entitled to a declaration that he is the owner of the suit property. The plaintiff was able to establish his title to the suit property in view of the two documents executed in his favour as per Exs. P-1 and P-2 by the previous owner P.W. 5, who became the owner of the suit property by virtue of the gift deed executed in her favour by her husband Ramaiah Setty who was admittedly an absolute owner of the suit property. It is to be held therefore that the plaintiff has become an absolute owner of the suit property by virtue of the two documents Exs. P-1 and P-2 executed in his favour by Padmavathamma-P.W. 5. Having regard to the above contents of the earlier sale deed Ex. P-1 and in the face of the subsequent document obtained by the plaintiff as per Ex. P-2 whereby Padmavathamma P.W. 5 had given up or foregone her right to obtain a reconveyance which was reserved to her under the earlier deed Ex. P-1, I am unable to accept the contention of the learned Counsel for the appellant that plaintiff was not entitled to seek the relief of declaration that he is the owner of the suit property. It has to be stated even at the cost of repetition that the plaintiff had purchased the suit property from Padmavathamma on a condition that if the said Padmavathamma return the consideration paid under the sale deed within a period of ten years, the property shall be reconveyed to her, but it appears that subsequently the said Padmavathamma-P.W. 5 instead of returning the consideration amount and obtaining a reconveyance in her favour, she received a further amount of Rs. 35,000/- and conveyed an absolute sale deed in favour of the plaintiff and thereby the plaintiff has become the absolute owner of the suit property. Therefore, what was once a conditional sale deed, has become an absolute sale deed during the pendency of the suit and this fact being proved by the plaintiff by examining the vendor, the Trial Court was justified in decreeing the suit of the plaintiff for the relief of declaration.

Regarding the gift set up by the appellant:

16. It is the case of the appellant that the deceased Ramaiah Setty had promised his wife (the wife of the appellant) at the time of her marriage that a residential building would be given as a gift to his wife Smt. Pramila. It is his further case that in pursuance of the said promise, the property in question was given as a gift (for Arasina Kunkuma) to Smt. Pramila for the use and benefit of herself and her husband, the appellant herein. It is stated that the said gift was accepted and acted upon by the parties. Thus it is the case of the appellant that the suit property had been given to his wife for her Arasina Kunkuma as and by way of gift for the use and benefit of himself and his wife. Neither the wife of the appellant nor any other witness who was supposed to be acquainted with such facts or have knowledge of such facts have been examined to substantiate the said plea taken by the appellant in his written statement. The person who was competent to speak to this fact was the wife of the appellant. But she did not come forward to depose to this fact. If really there was such a promise and pursuant to which the property had been given to the wife of the appellant as and by way of her Arasina Kunkuma, there would have been no difficulty for the appellant to have examined his wife who was the most competent person to speak to the said fact- But the appellant did not examine his wife to prove this fact. When the person in whose favour, the property was stated to have been gifted for her Arasina Kunkuma, did not challenge the gift deed executed in favour of P.W. 5, the only irresistible conclusion that could be drawn is that there was no such promise and the suit property was never gifted to the wife of the appellant in the manner as alleged by the appellant. When once such a plea of the appellant goes, there could no question of the appellant and his wife being put in possession of the suit property under the alleged gift by the deceased Ramaiah Setty will arise. That is to say in the absence of any reliable evidence placed on record, when it is not possible to accept the plea of the alleged gift in favour of the wife of the appellant, the question of the appellant and his wife being put in possession by virtue of the gift will not arise. Except the self serving statement of the appellant, there is no other evidence worth the name to believe the plea of gift in favour of the wife of the appellant. In fact the said plea of the appellant does not receive support from his own witness DW-2. DW-2 who appears to be a person of confidence of the appellant has deposed regarding the said plea of the appellant which reads thus:

(Editor: The text of the vernacular matter has not been reproduced.

required.)

17. The above evidence of DW-2 would show that he is not at all aware of any such gift being made by the deceased Ramiah Setty in favour of his daughter. If really the property had been gifted in the manner as stated by the appellant, DW-2 who claims to be a tenant in respect of a portion of the suit property must have known about the same. But, he says that he was not aware whether the property had been gifted or not in favour of the wife of the appellant. Further, if really there was such a gift in favour of the wife of the appellant, can it be said that the deceased could have executed a gift deed in favour of his wife P.W. 5 and can it be expected that the daughter of the deceased could have kept silent without challenging the gift deed Ex. P-9 executed in favour of P.W. 5, all these years. Therefore, on the face of it, it appears to be a false and untenable plea taken by the appellant to resist the claim of the plaintiff and cause obstruction from taking possession of the suit property by the plaintiff and in fact he has been successful in resisting the plaintiff from taking possession all these years. From the impugned judgment of the Trial Court, I find that the above contention which was raised on behalf of the appellant has been duly considered and rejected by the Trial Court. In rejecting the said contention, the Trial Court has observed in paragraphs 22 and 23 of its impugned judgment which reads as under:

"22. The first defendant has contended that he married the daughter of Ramaiah Setty in 1957 and that his father-in-law and mother-in-law had promised him at the time of marriage that they would give the suit schedule property to his wife for "Harishina Kunkuma". He has stated that there were tenants in occupation of the suit property who vacated in 1959 and that he is in possession of the suit property since 1959. He has further stated that since 1959 he has been collecting rents in respect of other portions of the suit property. In the cross-examination, he has stated that he has no document to show the gift in the name of his wife, but for the oral say of DW-1 there is nothing on record to show that either defendant 1 or his wife got the suit property under gift from Ramaiah Setty. Therefore, the defendant has failed to prove the said gift. The defendant 2 is examined as DW-2 in this case. He has stated in his evidence that he entered the suit premises as a tenant in 1969 under defendant 1. He claims that he is paying rent to defendant 1. The evidence of DW-2 is not supported by any document. DW-2 is an interested party in this suit, because he is in occupation of one portion of the suit property. The plaintiff had filed a small cause case, against him for recovery of rent as he had failed to pay the rents to the plaintiff. Under such circumstances, his oral say cannot be believed.

23. In view of the above said facts, I came to the conclusion that the first defendant has utterly failed to prove that his wife became owner of the suit property. Therefore, I answer issue 3 in the negative".

18. On perusal of the material evidence on record, I am in complete agreement with the above conclusion of the Trail Court. Therefore, I am unable to accept the contention of the learned Counsel for the appellant that the suit property had been given to the wife of the appellant as and by way of gift for her Arasina Kunkuma. As I have already noted, the said plea of the appellant appears to be a blatant lie.

Regarding the plea of adverse possession set up by the appellant:

19. It is no doubt true that in this ease the plaintiff has failed to establish that the appellant was a tenant in respect of the premises in question. But that by itself will not be sufficient to hold that the appellant has been able to establish his title to the suit property by adverse possession. When the appellant asserts his title to the suit property on the ground that the same has been gifted to his wife for her Arasina Kunkuma, it is for the appellant to prove as to when his possession has become adverse to the title of the first respondent. In this case, there is nothing on record to show as to when exactly the adverse possession started running. It has to be stated that a person pleading adverse possession has no equity in his favour and it is for him to clearly plead and establish all the facts necessary to establish his adverse possession. In Mohan Lal (deceased) through L.Rs and Others v Mira Abdul Gaffar and Another, it has been clearly held that a plea of adverse possession is not available to a party in possession pursuant to an agreement of sale. In this case, it is the specific case of the appellant that the property had been promised to be given to his wife by the deceased Ramaiah Setty at the time of her marriage with the appellant and in pursuance of such promise, the deceased gave the suit property to his wife for her Arasina Kunkuma and thus they came to be in possession of the suit property. Then in that event the appellant has to prove when it became adverse to the real owner. This is because it cannot be adverse to the deceased Ramaiah Setty as it is he who according to the appellant has gifted the property and put them in possession. Therefore, there can be no plea of adverse possession against the deceased Ramaiah Setty. In order to claim adverse possession against the deceased Ramaiah Setty, it has to be pleaded and proved that the daughter of the deceased Ramaiah Setty has acquiesced to it. In the absence of the specific plea and proof that the appellant and his wife had disclaimed their right under the gift and asserted hostile title and possession within the statutory period and that the deceased Ramaiah Setty acquiesced to it, the appellant cannot succeed to have it established that he has perfected title by adverse possession. In this connection, a reference may be made to a decision reported in Meethiyan Sidhiqu v Muhammed Kunju Pareeth Kutty and Others, wherein it has been observed by the Hon'ble Supreme Court in paragraph 12 as under:

Re: T.R. Srikantaiah Setty vs Balakrishna And Another

"12. It is therefore, clear from the above facts that unless there is a specific plea and proof that the appellant has declaimed his right and asserted hostile title and possession to the knowledge of the respondent within the statutory period and the latter acquiesced to it, he cannot succeed to have it established that he perfected his right by prescription. The High Court has taken the fact that there is neither a plea nor proof in this behalf. We cannot find any infirmity in this finding. Under these circumstances, the finding that the appellant has perfected his title by prescription is clearly illegal. In this case we are concerned only with the validity of the sale in respect of the share of the

respondent/plaintiff and not of the share of the mother".

20. Therefore, if the appellant were to say that he has perfected his title against the respondent 1 or his vendor, he must show as to when his adverse possession started running. But, in this case neither there is any such specific plea nor there is any evidence on record to show that the appellant has perfected his title to the suit property by prescription. At the most, the appellant can be said to have given notice of assertion of hostile title to the plaintiff when the latter filed the suit for recovery of rent before the Court of Small Causes. But the moment the said Court held that it has no jurisdiction to try the suit in view of the complicated question of title involved in the suit, the plaintiff filed the regular suit for declaration and for recovery of possession. Therefore, no question of plea of adverse possession arises in favour of the appellant. That apart, the plea taken by the appellant in his written statement and additional written statement on this point is that his parents-in-law had promised his wife at the time of her marriage in the year 1957 that a residential building would be given as a gift to the wife of the appellant by name Smt. Pramila and that in pursuance of the said promise, the property in question had been given to his wife by way of a gift for the use and benefit of herself and the appellant. Thus the appellant claim to be in occupation of the premises from 1959. It is on this plea, the appellant says that he has perfected his title to the suit property by adverse possession. It is pertinent to point out that the alleged gift was said to be in favour of the wife of the appellant and in pursuance of the said gift, it is stated that the property had been given for the use and benefit of the appellant and his wife. Thus, it was given by the deceased Ramaiah Setty even according to the appellant for the use and the benefit of the appellant and his wife. That means, the appellant was only allowed to use the property as the same was given for their beneficial use and enjoyment. If that was to be so, there is nothing on record to show as to when the possession of the appellant has become adverse to the plaintiff or to his vendor or to the deceased Ramaiah Setty. Now, in this case the alleged gift in favour of the wife of the appellant having not been established or proved by the appellant, the question of the appellant and his wife being put in possession by virtue of the alleged gift will not arise. Hence, the plaintiff cannot be deemed to have been put in possession under the gift, deed. At this stage, it would be useful to refer to the evidence of DW-2 who has stated that the daughter and the son-in-law (the appellant herein) of the deceased were staying in the house. That means, the appellant and his wife were both staying in the house of the deceased Ramaiah Setty who happened to be the father-in-law of the appellant. It therefore appears to me that the appellant had been residing with his wife in the house in question in his capacity and status of his being the son-in-law of the deceased Ramaiah Setty and nothing more. Therefore, on the facts and circumstances of this case, the appellant cannot be said to have established his plea of adverse possession. In this connection, a reference may also be made to a decision in Maadhavk-rishna v Chandra Bhaga.

Regarding the jurisdiction of the Trial Court to pass a decree for possession:

21. It is the contention of the appellant that the plaintiff claims the appellant to be his tenant and that being so, the plaintiff cannot seek possession except under and in accordance with the provisions contained in the KRC Act. It is no doubt true that in this case though the appellant came with specific plea that the appellant is his tenant, he has failed to establish the same. Even the appellant did not accept that he is a tenant under the plaintiff. That being so, there exists no relationship of landlord and tenant between the appellant and the respondent 1 and hence the question of first respondent seeking his relief under the Karnataka Rent Control Act does not arise. That apart, in this case it is not in dispute that the plaintiff had filed a suit against the appellant seeking the relief of recovery of rents on the ground that the appellant is a tenant wherein the appellant having taken a plea that he is the owner and not the tenant, the Court of Small Causes had returned the plaint. Under the circumstances, the present suit came to be filed for recovery of possession. The said order made by the Court of Small Causes having become final and conclusive, it will act as an estoppel for the appellant to take up such a plea again. That apart, as I have already stated the plaintiff having failed to establish his plea that the appellant was a tenant under him and the evidence on record showing that the appellant has been staying in the premises in question in his capacity or status as the son-in-law of the deceased Ramaiah Setty, the Trial Court had ample jurisdiction to grant the relief of recovery of possession to the plaintiff. In this connection, a reference may be made to a decision in Chandrabhagabai and Others v Ramakrishna and Others, wherein it is held as under:

Adverse possession -- Suit for possession -- Plaintiff purchased. Suit house in Court auction -- Rented portion of hose to defendants -- Facts showed that defendant remained in possession as owner of property since last more than 30 years prior to filing of suit -- Statement of defendant admitting himself as tenant and plaintiff as owner in municipal records --Cannot be proved as defendant since deceased not available for examination -- Defendant's title established on plea of adverse possession.

22. In the instant case, apart from the fact that the suit filed by the plaintiff had been returned by the Court of Small Causes, there is no material on record to infer that there exists any relationship of landlord and tenant between the plaintiff and defendant 1. That being so, the Trial Court in my opinion was justified in granting the relief of recovery of possession to the plaintiff/respondent 1 who was held to be the owner of the suit property.

23. Therefore, I find no merit in any of the contentions urged by the learned Counsel for the appellant.

24. There can be no quarrel about the principles enunciated in the decisions relied upon by the learned Counsel for the appellant. But the difficulty is about their application to the facts and circumstances of this case. It is no doubt true that the appellant was entitled to take a plea of adverse possession, but on appreciation of the evidence on record I find that the appellant has failed to establish his plea of adverse possession and hence be has to fail.

25. In the result, therefore, the appeal filed by the appellant is dismissed. But in the circumstances of the case, there is no order as to costs.