Karnataka High Court
Sri B Shivaramaiah vs Smt Jayamma on 1 September, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2023:KHC:31526
RSA No. 1650 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.1650 OF 2021 (DEC/INJ)
BETWEEN:
SRI B SHIVARAMAIAH
SON OF BYRANNA
AGED ABOUT 50 YEARS,
RESIDING AT INDIRANAGARA
NELAMANGALA TOWN
REPRESENTED BY HIS GPA HOLDER
SRI VIJAY
SON OF NAGAPPA
AGED ABOUT 58 YEARS,
RESIDING AT INDIRA NAGAR
NELAMANGALA TOWN
PIN CODE - 562 123
...APPELLANT
Digitally signed (BY SRI. SIDDAMALLAPPA P M, ADVOCATE)
by SHARANYA T
Location: HIGH AND:
COURT OF
KARNATAKA
SMT JAYAMMA
WIFE OF GOVINDAPPA
AGED ABOUT 62 YEARS,
RESIDING AT NELAMANGALA TOWN
BANGALORE RURAL DISTRICT
PIN CODE - 562 123
...RESPONDENT
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED
16.04.2016 PASSED IN O.S.NO.47/1992, PASSED BY THE
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NC: 2023:KHC:31526
RSA No. 1650 of 2021
LEARNED PRINCIPAL CIVIL JUDGE AND JMFC, NELAMANGALA
AND JUDGMENT AND DECREE DATED 02.03.2021 PASSED BY
THE LEARNED 2ND ADDITIONAL SENIOR CIVIL JUDGE,
NELAMANGALA, IN R.A.NO.64/2016 AND ORDER TO DISMISS
THE SUIT IN O.S.NO.47/1992, ON THE FILE OF LEARNED
PRINCIPAL CIVIL JUDGE AND JMFC, NELAMANGALA BY
ALLOWING THE ABOVE APPEAL WITH EXEMPLARY COSTS, IN
THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for appellant. This matter is listed for admission.
2. The factual matrix of the case of the plaintiff/respondent before the Trial Court that, the plaintiff is the absolute owner of the property which is morefully described in the schedule and the same is purchased for a valuable consideration from the Chief Officer of Town Municipal Council, Nelamangala, under a registered sale deed dated 21.08.1980. The plaintiff is in the possession of the suit schedule property. The defendant is a stranger and trying to interfere with the property of the plaintiff and made an attempt to put up the building over the suit schedule property, with great difficulty, the same is resisted.
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NC: 2023:KHC:31526 RSA No. 1650 of 2021
3. In pursuance of the suit summons, the defendant has appeared and filed written statement claiming that Town Municipal, Nelamangala has allotted the suit schedule property to the defendant's vendor, under a resolution dated 30.11.1978 and also executed lease cum sale certificate dated 15.04.1981 to the defendant's vendor and all the revenue records are changed in the name of vendor of the defendant. The defendant's vendor was in peaceful possession and enjoyment of the suit schedule property and the defendant had purchased the same from the vendor vide registered sale deed dated 20.06.1991. The defendant is in peaceful possession and enjoyment of the suit schedule property as absolute owner.
4. It is also the contention of the defendant that after the purchase the defendant has obtained a license and approved plan from the Mandal Panchayathi, Nelamangala for construction of building in the suit schedule property and also contended that the suit is barred by time under law of limitation and hence, prayed the Court to dismiss the suit.
5. The Trial Court based on the pleadings, framed the issues on 25.02.1993 and subsequently in view of -4- NC: 2023:KHC:31526 RSA No. 1650 of 2021 the rival pleadings of the parties, issues are recasted and allowed the parties to lead evidence. The Trial Court having considered the rival pleadings framed the issues and also considering both oral and documentary evidence placed on record answered all the issues and issue Nos.1 and 2 are answered as affirmative which are framed on 03.07.1997 and also subsequent issue No.3 to 5 as negative and also the earlier issues which are framed on 25.02.1993 i.e., issue Nos.1 to 3 are answered as affirmative.
6. The very contention of the defendant that the suit is barred by limitation is answered as negative and regarding the issue that the Trial Court has no pecuniary jurisdiction to entertain the suit is also answered as negative and the issue with regard to the defendant has perfected his title by adverse possession is answered as negative and the Trial Court has granted the relief of declaration in favour of the plaintiff as absolute owner and also granted permanent injunction.
7. Being aggrieved by the said judgment and decree, an appeal is filed in RA No.54/2016 and the First Appellate Court also based on the grounds urged in the appeal -5- NC: 2023:KHC:31526 RSA No. 1650 of 2021 has formulated the point as whether the Court below has committed an error in declaring that the plaintiff is the absolute owner of the property and he is in possession and whether the Trial Court is justified in granting the relief of declaration and injunction and whether it requires any interference. The First Appellate Court on re-appreciation of both oral and documentary evidence, answered the point No.1 as negative in coming to the conclusion that the Trial Court has not erred in holding that the plaintiff is the absolute owner and not committed any error and Court is justified in granting declaration and injunction and it does not requires any interference.
8. Being aggrieved by the said judgment and decree of concurrent finding, the present second appeal is filed before this Court. The counsel appearing for appellant would vehemently contend that both the Courts below have committed an error in not appreciating both oral and documentary evidence and fails to take note of the earlier resolution passed in the year 1978 itself. The counsel would vehemently contend that both the Courts fails to consider the pleadings, both oral and documentary evidence and the Courts -6- NC: 2023:KHC:31526 RSA No. 1650 of 2021 are not justified in decreeing the suit without considering the persisting right of the appellant over the suit schedule property as there was a earlier resolution in favour of appellant. Hence, this Court has to admit and frame substantive question of law and also on perusal of material available on record, the very contention of the appellant that there was a earlier resolution on 30.11.1978 in favour of the appellant herein.
9. Though the sale deed was executed subsequently on 15.04.1981 when there was a resolution in respect of the very same property and the same has not been considered by both Trial Court as well as the First Appellate Court. The said contention cannot be accepted and merely because of the resolution prior to the execution of the sale deed and same is not convey any right, the sale deed admittedly executed in favour of respondent herein on 21.08.1980 and subsequent sale deed in favour of the appellant dated 15.04.1981 does not convey any right. Since the property was already sold and prior sale deed was in favour of the respondent herein i.e., dated 21.08.1980 and also the plaintiff prayed relief upon the document of receipt of payment made prior to the sale deed and also relies upon the meeting -7- NC: 2023:KHC:31526 RSA No. 1650 of 2021 proceedings dated 31.11.1978, letter issued by the Chief Secretary of the Bengaluru Rural Zilla parishath, encumbrance certificate, meeting proceedings of the CMC also and when such materials are placed before the Trial Court, the Trial Court and the First Appellate Court having considered the material on record dismissed the suit. No doubt the defendant also relied upon endorsement which is marked as Ex.D2 as well as sale deed under which the property was purchased marked as Ex.D3, assessment list as Ex.D4 and lease cum sale certificate as Ex.D5 and there is no dispute with regard to the claim made by the plaintiff as well as the defendant in respect of the very same property. Both are claiming in respect of the very same property and when such being the case, when there was a sale deed in favour of the plaintiff/respondent on 21.08.1980 itself, thereafter subsequent sale deed was executed in favour of the appellant and same does not convey any right.
10. Both the Trial Court and First Appellate Court have taken note of the said material on record and rightly answered the issues framed in favour of the plaintiff/respondent. Hence, I do not find any error committed by the Trial Court as well as the First Appellate Court. On -8- NC: 2023:KHC:31526 RSA No. 1650 of 2021 appreciation of both oral and documentary evidence, both Courts have given anxious consideration by considering material on record, unless any perversity found in the judgment of the Trial Court as well as the First Appellate Court both in respect of fact finding and also the question of law, I do not find any ground to admit the appeal and frame substantive question of law by invoking Section 100 of CPC.
10. In view of the discussion made above, I pass the following:
ORDER The second appeal is dismissed.
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JUDGE RHS List No.: 1 Sl No.: 62