Karnataka High Court
N. Venkatappa vs Chikkapapamma on 14 August, 2017
Author: B.Sreenivase Gowda
Bench: B.Sreenivase Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 14TH DAY OF AUGUST 2017
BEFORE
THE HON'BLE MR.JUSTICE B.SREENIVASE GOWDA
R.S.A. NO.1949/2013
C/W R.S.A. NO.1948/2013
In RSA No.1949/2013
Between:
1. N.Venkatappa,
S/o Kalli Gowda,
Age 62 years,
R/o Nagireddipalli Village,
V.Kota Mandalam,
Chittoor District - 517 424.
2. G.Hanumanthu,
S/o Rame Gowda,
Age 53 years
R/o Gonumakanapalli Village,
V.Kota Mandalam,
Chittoor District - 517 424.
3. Parvathamma,
D/o Kalli Gowda,
Age 56 years,
R/o Nernapalli,
Muthukur Post,
Punganoor Taluk,
Chittoor District - 524 334.
2
4. Munemma,
D/o Kalli Gowda,
Age 51 years,
R/o Gonumakanapalli Village,
V.Kota Mandalam,
Chittoor District - 517 424.
5. Lakshmamma,
D/o Kalli Gowda,
Age 46 years,
R/o Gonumakanapalli Village,
V.Kota Mandalam,
Chittoor District - 517 424.
6. G.Ramachandrappa,
S/o Rame Gowda,
Age 64 years,
R/o Gonumakanapalli Village,
V.Kota Mandalam,
Chittoor District - 517 424.
7. Vijayamma,
D/o Rame Gowda
Age 63 years,
R/o Maredupalli Village,
Palamaner Taluk,
Chittoor District - 517 408.
...Appellants
(By Sri.Tajuddin, Advocate)
And:
1. Chikkapapamma,
W/o late P.M.Narayanappa,
Age 64 years,
R/o Kurubarapalya,
Mulbagal Town - 563 131.
3
2. P.M.Ramachandrappa,
S/o late Munishamy,
Age 67 years,
R/o Kurubarapalya,
Mulbagal Town - 563 131.
3. P.N.Radhakrishna,
S/o late P.M.Narayanappa,
Age 49 years,
R/o Kurubarapalya,
Mulbagal Town - 563 131.
4. P.N.Mallesh,
S/o late P.M.Narayanappa,
Age 40 years,
R/o Kurubarapalya,
Mulbagal Town - 563 131.
...Respondents
(By Sri Jagadish, Advocate
for Sri.G.Papi Reddy for C/R2)
This R.S.A. is filed under Section 100 of CPC
against the judgment and decree dated 30.09.2013
passed in R.A.No.199/2009 on the file of the II
Additional Senior Civil Judge, Kolar (itinerating at
Mulbagal), dismissing the appeal and confirming the
judgment and decree dated 18.08.2009 passed in
O.S.No.116/2001 on the file of the Principal Civil Judge
(Jr.Dn) and JMFC, Mulbagal.
In RSA No.1948/2013
Between:
1. N.Venkatappa,
S/o Kalli Gowda,
4
Age 62 years,
R/o Nagireddipalli Village,
V.Kota Mandalam,
Chittoor District - 517 424.
2. G.Hanumanthu,
S/o Rame Gowda,
Age 53 years
R/o Gonumakanapalli Village,
V.Kota Mandalam,
Chittoor District - 517 424.
3. Parvathamma,
D/o Kalli Gowda,
Age 56 years,
R/o Nernapalli,
Muthukur Post,
Punganoor Taluk,
Chittoor District - 524 334.
4. Munemma,
D/o Kalli Gowda,
Age 51 years,
R/o Gonumakanapalli Village,
V.Kota Mandalam,
Chittoor District - 517 424.
5. Lakshmamma,
D/o Kalli Gowda,
Age 46 years,
R/o Gonumakanapalli Village,
V.Kota Mandalam,
Chittoor District - 517 424.
6. G.Ramachandrappa,
S/o Rame Gowda,
Age 64 years,
5
R/o Gonumakanapalli Village,
V.Kota Mandalam,
Chittoor District - 517 424.
7. Vijayamma,
D/o Rame Gowda
Age 63 years,
R/o Maredupalli Village,
Palamaner Taluk,
Chittoor District - 517 408.
...Appellants
(By Sri.Tajuddin, Advocate)
And:
1. Chikkapapamma,
W/o late P.M.Narayanappa,
Age 64 years,
R/o Kurubarapalya,
Mulbagal Town - 563 131.
2. P.M.Ramachandrappa,
S/o late Munishamy,
Age 67 years,
R/o Kurubarapalya,
Mulbagal Town - 563 131.
3. P.N.Radhakrishna,
S/o late P.M.Narayanappa,
Age 49 years,
R/o Kurubarapalya,
Mulbagal Town - 563 131.
4. P.N.Mallesh,
S/o late P.M.Narayanappa,
Age 40 years,
R/o Kurubarapalya,
6
Mulbagal Town - 563 131.
...Respondents
(By Sri Jagadish, Advocate
for Sri.G.Papi Reddy for C/R2)
This R.S.A. is filed under Section 100 of CPC
against the judgment and decree dated 30.09.2013
passed in R.A.No.218/2009 on the file of the II
Additional Senior Civil Judge, Kolar (itinerating at
Mulbagal), allowing the appeal and confirming the
judgment and decree dated 18.08.2009 passed in
O.S.NO.116/2001 on the file of the Principal Civil Judge
(Jr.Dn)& JMFC, Mulbagal.
These appeals coming on for Admission this day,
the Court delivered the following:-
JUDGMENT
RSA No.1949/2013 is filed by the plaintiffs in O.S.No.116/2001 on the file of Prl.Civil Judge (Jr.Dn) & JMFC at Mulabagal challenging the concurrent judgments and decrees passed by the Courts below whereby the suit of the plaintiffs has been dismissed by the trail Court and it was confirmed by the first appellate Court in R.A.No.199/2009. Whereas, RSA No.1948/2013 is also filed by the plaintiffs in O.S.No.116/2001 on the file of Prl.Civil Judge (Jr.Dn) & 7 JMFC at Mulabagal challenging the judgment and decree passed by the first appellate Court whereby it has allowed R.A.No.218/2009 preferred by the defendants and set aside the finding of the trial Court on issue No.5 and held that defendants have perfected their right to the suit property by adverse possession.
2. As these two appeals arise out of common judgments and decrees passed by the Courts below, with the consent of learned counsel for both the parties, they were heard together and disposed off by this common judgment.
3. Sri.Tajuddin, learned counsel appearing for the appellants/plaintiffs in both the appeals submits that the Courts below have failed to consider the admissions made by the defendants that plaintiffs' ancestors were owners of suit property and erred in dismissing the suit of the plaintiffs. He submits that the trial Court has correctly held that defendants are not in 8 adverse possession of the suit property, whereas the first appellate Court by not properly appreciating the mutation and other revenue documents produced by the defendants has erred in holding that defendants are in adverse possession of the suit property. He submits that Courts below considering the fact that parties are related to each other as admitted by the defendants, should have held that possession of the defendants over the suit property is a permissive possession. He submits that Courts below have failed to hold that defendants are in wrongful possession of the suit property after change of khata in the name of P.M.Narayanappa, husband of the defendant No.1. He submits that judgment and decree passed by the trial Court relating to plaintiffs' title over the suit property is vague and indefinite and the judgment and decree passed by the first appellate Court relating to the title of the plaintiffs over the suit property is arbitrary and perverse. He submits, during the pendency of the suit, defendants 9 dispossessed the plaintiffs from the suit property and the application filed by the plaintiffs seeking amendment of the prayer made in the suit for recovery of possession of the suit property was allowed. If plaintiffs were not dispossessed from the possession of the suit property by the defendants during the pendency of the suit, the trial Court should have rejected their application for amendment of the prayer seeking possession of the suit property. Therefore, learned counsel submits that there are substantial questions of law arise for consideration and he prays for admitting the appeals for considering those substantial questions of law.
4. Sri.Jagadeesh, learned counsel for Papi Reddy learned counsel appearing for respondents/defendants submits that suit property admittedly belonged to two different owners namely Vasappa and Changamma. Suit as brought by the 10 plaintiffs by furnishing common boundaries to both the properties is not maintainable as rightly held by the Courts below. He submits that plaintiffs No.1 and 2 derive title to the suit property through two different persons namely Vasappa and Changamma. He submits that revenue documents produced by the defendants would clearly demonstrate that they have been in possession and enjoyment of the suit property since 1964-1965 and the Courts below considering the same were justified in dismissing the suit of the plaintiffs that defendants have perfected their possession over the suit property by adverse possession. He submits that there are no illegalities or infirmities in the judgments and decrees of the Courts below warranting interference of this Court. Finally, he submits that there are no substantial questions of law which arise for consideration and therefore, he prays for dismissal of the appeals.
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5. The case of the plaintiffs is that plaintiffs are the absolute owners in possession and enjoyment of the suit property. Originally the southern half of the suit schedule property belonged to the grand father of plaintiff No.1, namely Vasappa by virtue of partition deed dated 26.05.1932 and his brother P.Munishamy. Northern half portion of the schedule property belonged to great grandmother of plaintiff No.2 namely Changamma by virtue of registered sale deed dated 26.05.1932 executed by Vasappa and his brother P.Muniswmay. Defendants have no manner of right, title or possession over the suit property. Defendant No.1 is the wife of P.M.Narayanappa, the eldest son of P.Muniswamy. Defendant No.2 is the youngest brother of P.M.Narayanappa. During the life time of P.M.Narayanappa, he and defendant No.1 in collusion with the revenue authorities succeeded in obtaining the khata of the suit property in the name of P.M.Narayanappa. After the death of P.M.Narayanappa, 12 the defendants succeeded in creating revenue documents and obtaining khata in the name of defendant No.3. By virtue of illegal entries in the revenue records, defendants tried to interfere with the plaintiffs' possession and enjoyment over the suit property. Hence, plaintiffs have filed the suit for declaration of their title over the suit property and for the relief of permanent injunction restraining the defendants from interfering with the possession and enjoyment of the plaintiffs over the suit property.
6. Defendant Nos.1 to 4 have filed common written statement denying the allegations made in the plaint and contended that on 26.05.1932 Vasappa and his brother P.Muniswamy sold northern portion of 0.26 2/3 guntas of land out of the suit Sy.No.29/3 in favour of Changamma, the mother-in-law of Vasappa and great grandmother of plaintiff No.2. The remaining southern portion out of the said Sy.No.29/3 measuring 0.26 2/3 13 guntas was acquired by grandfather of plaintiff No.1 under the registered partition deed. Changamma inspite of the fact that she became the owner of northern portion of the suit survey number, had not come to the possession of the said portion of the suit property and it remained with Vasappa. Column No.9 of the RTC stood in the name of Vasappa for the entire extent of 1 acres 14 guntas. In fact, he leased the entire property to one Bellammanavara Krishnappa for a period of two years on 'wara basis' from 1964-1965 to 1965-1966. Subsequently, during 1965-1966 Vasappa died. His wife Hullooramma left him prior to his death and had gone to Nagireddipalli and started living separately from Vasappa. Vasappa without any alternative was living with his brother P.Munishamy. Subsequent to his death, properties belonging to him and Changamma were cultivated by P.Munishamy and his sons late P.M.Narayanappa and P.M.Ramachandrappa. Subsequent to demise of P.Munishamy and his son 14 P.M.Narayanappa, the defendants are in exclusive possession of entire 1 acres and 14 guntas. After the death of Vasappa, his brother P.Munishamy and P.Munishamy's son P.M.Narayanappa continued to enjoy the property adversely to the knowledge of Changamma and Vasappa. Their adverse possession started about 37 years ago i.e., during the year 1965- 1966 which is continuous, peaceful, uninterrupted, open, notorious and hostile to the knowledge of all persons including the real owners of the properties. After the death of Vasappa, none of the legal heirs of Vasappa and Changamma possessed and enjoyed the suit property to which they were owners. This fact is established by entries made in column No.12(2) of RTC for the years 1967-1968 to 1968-1969 and further from the year 1970-1971 to 1989-1990. Considering their long standing possession and enjoyment after the death of Vasappa, the khata of the property to the extent of 1 acre 14 guntas was made out in the name of 15 P.M.Narayanappa, husband of first defendant, father of defendant Nos.3 and 4 and brother of defendant No.2. After the death of P.M.Narayanappa, the khata of the suit property was changed in the name of defendant No.3. These defendants have perfected the title of the suit property by adverse possession. With the above grounds they prayed for dismissal of the suit.
7. The trial Courts on the basis of rival pleadings of the parties has framed the following issues for its consideration:
Issues
i) Whether the plaintiffs prove that during the pendency of the suit defendants dispossessed the plaintiffs from the suit property illegally and as such they are entitled for recovery the possession?
ii) Whether the defendants further prove that the market value of the suit property is worth more than Rs.50,000/- as on date of suit and as 16 such this Court has no pecuniary jurisdiction to try the same?
iii) Whether the defendants prove that plaintiffs 3 to 5 are not having any cause of action, hence they can not maintain suit against defendants?
iv) Whether the defendants prove that the plaintiffs are not entitled for the reliefs of amended prayer of recovery of possession since no pleadings are supported in that regard?
v) Whether the defendants prove that they perfected their title over suit property by law of adverse possession?
vi) What Order or decree?
8. Plaintiffs in order to prove their case have examined first plaintiff N.Venkatappa as PW1 and three more witnesses as PWs.2 to 4 respectively. Documents produced by them were marked as Exs.P-1 to P-17. On behalf of the defendants, defendant No.2 P.M.Ramachandrappa was examined as DW1 and 17 documents produced by them were marked as Exs.D-1 to D-30.
9. The trial Court after hearing the arguments advanced by the learned counsel for the both the parties has held that plaintiffs have failed to prove that during the pendency of the suit, defendants dispossessed them from the suit property illegally and they are entitled for possession and has further held that defendants have proved that plaintiff Nos.3 to 5 are not having any cause of action and they cannot maintain the suit and it has further held that defendants are not entitled for the relief of amended prayer of recovery of the possession of suit property and has held that defendants have not perfected their title over the suit property by adverse possession and consequently dismissed the suit.
Plaintiffs aggrieved by the said judgment and decree of the trial Court have challenged the same by preferring R.A.No.199/2009 before the first appellate Court. 18 Defendants aggrieved by the finding of the trial Court on issue No.5 wherein it has also held that defendants have failed to prove that they have perfected their title over the suit property by adverse possession have preferred R.A.No.218/2009. The first appellate Court dismissed R.A.No.199/2009 filed by the plaintiffs and allowed R.A.No.218/2009 preferred by the defendants and set aside the finding of the trial Court on issue No.5 and held that the defendants have perfected their title over the suit property by adverse possession. Plaintiffs aggrieved by the judgment and decree passed by the first appellate Court in R.A.199/2009 have preferred RSA No.1949/2013 and aggrieved by the judgment and decree passed by the first appellate Court in R.A.No.218/2009 have preferred RSA No.1948/2013.
10. It is admitted case of the plaintiffs that originally southern half of the suit property measuring 0.26 2/3 guntas belonged to the grandfather of plaintiff 19 No.1 namely Vasappa by virtue of registered partition dated 26.05.1932 effected between Vasappa and his brother P.Munishamy and northern half of the suit schedule property belonged to great grand mother of plaintiff No.2 viz. Chengamma by virtue of registered sale deed dated 25.5.1932 made by vasappa and his brother P.Muniswamy. Defendants have admitted this in their written statement. It is the specific case of the defendants that though Changamma purchased the northern portion of the suit property from her son-in- law Vasappa and his brother P.Munishamy, sale deed was not given effect to and her name was never entered in the revenue records. She was never in possession of the said land. Consequently, in khata column No. 9 of RTC, name of Vasappa continued for the entire extent of 1 acres 14 guntas. Vasappa's wife Hullooramma left him and had gone to Nagireddipalli and started living there separately from her husband Vasappa. Vasappa without any alternative was living with his brother 20 P.Muniswamy prior to his death. Subsequent to the death of Vasappa which occurred during the year 1965- 66, the suit property belonging to Vasappa and Changamma were being cultivated by P.Munishamy and his sons namely P.M.Narayanappa and defendant No.2, P.M.Ramachandrappa and they were in possession and enjoyment of the suit property to the knowledge of the plaintiffs. After the death of Munishamy, the revenue records were changed into the name of P.M.Narayanappa, who is the eldest son of Munishamy and husband of defendant No.1, brother of defendant No.2 and father of defendant Nos.3 and 4. After the death of Narayanappa, the revenue records were changed into the name defendant No.2- Ramachandrappa as evident from Exs.P3 to 5, 12 and
13. The sale deed produced by the plaintiff at Ex.P-2 and by the defendants at Ex.D-3 would show that the northern half portion measuring 0.26 2/3 guntas of land in Sy.No.29/3 was jointly sold by Vasappa and his 21 brother Munishamy in favour of Changamma. Partition deed produced by the plaintiff at Ex.P-1 would show that southern half portion measuring 0.26 2/3 guntas of land in Sy.No.29/3 had fallen to the share of Vasappa. If that is so, plaintiffs' case that they are the owners in possession of entire suit property cannot be accepted. Though southern half portion of the suit property measuring 0.26 2/3 guntas of land had fallen to the share of Vasappa, grand father of plaintiff No.1, revenue records were never changed into his name. Similarly, though Vasappa and his brother had sold the northern half portion of the suit property measuring 0.26 2/3 guntas in favour of Changamma, Changamma did not get the revenue records transferred into her name. No revenue records were produced to show that Changamma was in possession of northern half portion of the suit property. Similarly, revenue records standing in the name of Vasappa were produced in respect of southern half portion of the suit property. Vasappa had 22 no issues. Plaintiff No.1 claims to be the foster son of Vasappa, but no documents were produced to that effect. Vasappa's wife left him during his life time and had gone to Nagireddypalli and started living separately from Vasappa. Vasappa left with no other alternative was living with his brother Munishamy. Vasappa died issueless during the year 1965-66. His brother Munishamy continued to be in possession of the entire suit property. Considering his long standing possession, revenue records were transferred into his name as seen in the record of rights produced by both the parties. After his death, revenue records were transferred into the name of his first son, Narayanappa, husband of defendant No.1 and after the death of Narayanappa, the revenue records were changed into the name of his brother Ramachandrappa, defendant No.2.
11. As already stated, the revenue records for the entire suit property were in the name of 23 Munishamy, brother of Vasappa and after his death they were changed into the name of his first son Narayanappa and after the death of Narayanappa, they were changed into the name of the second son of Munishamy viz., Ramachandrappa. Though plaintiffs got the plaint amended and sought for the relief of possession of the suit properties alleging that they were dispossessed from the possession of the suit property by the defendants during the pendency of the suit, no police complaint was lodged and not even the date on which they were dispossessed is stated. Their contention that they were dispossessed from the suit property by the defendants during the pendency of suit is not established. Defendants are in possession of the suit property for the last 37 years as evident from the revenue records. Considering this, the trial Court was justified in dismissing the suit of the plaintiffs holding that the plaintiffs have failed to prove their title to the suit property.
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12. The trial Court has held issue No.5 in the negative holding that the defendants have failed to prove that they have perfected their title to the suit property by adverse possession. Aggrieved by the said finding of the trial Court, the defendants preferred a regular appeal before the first appellate Court and the first appellate court has allowed the appeal and has set aside the finding of the trial court on issue No.5 and has held that the defendants have proved that they have perfected their title to the suit property by adverse possession.
13. Plaintiff No.1 has failed to prove that he is the foster son and plaintiff No.2 failed to prove that he is the great grandson of Changamma. Therefore, their contention that they are related to defendants and defendants are in permissive possession of the suit property, cannot be accepted. It is Munishamy, who continued to be in possession of the suit property after 25 the death of Vasappa as Vasappa was living with him prior to his death. Therefore, possession of the defendants over the suit property is adverse to the knowledge of the plaintiffs as has been rightly held by the first appellate Court.
14. I have carefully gone through the judgments and decrees passed by the both the Courts below and do not see any illegality or infirmity warranting my interference. Further, there is no substantial questions of law muchless one urged in the appeal memorandum would arise for consideration.
15. Accordingly, both the appeals are dismissed as devoid of merits.
SD/-
JUDGE dn/dm