Karnataka High Court
Smt.Gangamma D/O Hanumavva vs B Padmaraj S/O Rajanna on 12 February, 2024
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
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NC: 2024:KHC-D:3079
RFA No. 100080 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 12TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
REGULAR FIRST APPEAL NO. 100080 OF 2021 (DEC)
BETWEEN:
SMT.GANGAMMA D/O HANUMAVVA
AGE 54 YEARS, OCC HOUSEHOLD WORK,
R/O 10TH WARD, ANJANEYA BADAVANE,
HARAPANAHALLI, TQ HARAPANAHALLI,
DIST DAVANAGERE-583131.
...APPELLANT
(BY SRI LAXMAN T MANTAGANI, ADVOCATE.)
AND:
1. B PADMARAJ S/O RAJANNA
AGE 49 YEARS, OCC BUSINESS,
R/O BANGARAPETE,
HARAPANAHALLI TOWN,
DIST DAVANAGERE-583131.
SUJATA
SUBHASH 2. REVANNASIDDAPPA S/O GANGAMMA
PAMMAR AGE 30 YEARS, OCC AGRICULTURE,
R/O 10TH WARD, ANJANEYA BADAVANE,
HARAPANAHALLI, TQ HARAPANHALLI,
DIST DAVANAGERE-583131.
...RESPONDENTS
(BY MISS SHIVALEELA ARAHUNASI FOR SRI. ARAVIND D.
KULKARNI, ADVOCATE FOR R1;
R2 - NOTICE SERVED.)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 OF THE CODE OF CIVIL PROCEDURE, 1908, PRAYING TO
SET ASIDE THE JUDGMENT AND DECREE DATED 21.01.2021,
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NC: 2024:KHC-D:3079
RFA No. 100080 of 2021
PASSED BY THE COURT OF THE SENIOR CIVIL JUDGE AND
JMFC, HARAPANAHALLI, IN O.S.NO.122/2017 BY ALLOWING
THIS REGULAR FIRST APPEAL WITH COSTS, IN THE INTERST
OF JUSTICE AND EQUITY, AND ETC.,.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Plaintiff No.1 is currently in appeal and they initiated a suit in O.S.No.122/2017 for declaration that they are the absolute owners in possession of the suit schedule properties and consequential relief of permanent injunction restraining the defendants from interfering with their peaceful possession over the suit schedule properties.
2. The plaint averments in brief, are as follows:
Plaintiff No.1 is the absolute owner of the suit schedule property measuring 40' x 60', and out of the said extent an extent of 20' x 60' was conveyed in favour of plaintiff No.2 through a registered gift deed dated 02.05.2009 and since there was a mistake, rectification deed was executed on 29.05.2017 describing the boundaries correctly. The defendants having no manner of right, title over the suit schedule properties, and by creating document are claiming right over -3- NC: 2024:KHC-D:3079 RFA No. 100080 of 2021 the suit schedule properties and are interfering with their peaceful possession.
3. The defendants entered appearance, and filed written statement stating that, one Nagaraj executed a registered sale deed dated 20.4.1964 in favor of one B Hombappa, and after his death, his legal representatives executed a registered sale deed in favor of defendant through a registered sale deed dated 17.8.2016. The boundaries shown by the plaintiffs to the property as 40/871 is the boundaries of the defendant property, that is 40/872. The plaintiffs created documents to fraudulently to grab the suit schedule property belonging to the defendant. The Trial Court, on the basis of pleadings of the parties, framed the following:
ISSUES
1. Whether plaintiffs prove that they are the absolute owner of the suit schedule properties?
2. Whether plaintiff No.1 proves that he has executed gift deed in respect of suit properties to the extent of 20x60 feet in favour of plaintiff No.2?
3. Whether plaintiff have prove the alleged interference by the defendants over the peaceful possession and enjoyment of plaintiffs over suit properties?-4-
NC: 2024:KHC-D:3079 RFA No. 100080 of 2021
4. Whether defendants prove that plaintiff have show wrong boundaries to Sy.No.40/871/40 which is boundary of his properties?
5. Whether defendants proves that plaintiff have created fake documents in respect of suit properties?
6. Whether plaintiffs are entitled for the relief as sought for in the plaint?
7. What order or decree?
4. The plaintiffs to prove their case examined PWs.1 to 4, and marked the documents at Exs.P1 to P37, and the defendant to prove his case examined as DW1 and DW2, and marked the documents as Exs.D1 to D30.
5. The Trial Court, after appreciating the evidence on record, held that the plaintiffs have failed to prove that, they are the owners of the suit schedule properties and dismissed the suit.
6. The learned counsel for the appellant submits that the document at Ex.P1, and the corresponding entries in the revenue records, and khata extracts clearly establish that, the plaintiffs are the owners of the suit schedule properties, and the Trial Court, ignoring the said documentary evidence, has committed an error in dismissing the suit. Therefore, sought for -5- NC: 2024:KHC-D:3079 RFA No. 100080 of 2021 setting aside the impugned judgment and decree passed by the Trial Court.
7. Per contra, the learned counsel for respondents submits that, in the absence of source of title, the Trial Court has rightly held that, the gift deed executed by the plaintiff No.1 in favor of plaintiff No.2 does not establish that, the plaintiffs are the owners of the suit schedule property, and the findings recorded by the Trial Court is based on oral and documentary evidence, and in the absence of any arbitrariness or perversity, the impugned judgment and decree passed of the Trial Court does not warrant any interference.
8. Considered the submissions made by the learned counsel for the parties and perused the Trial Court records.
9. The plaintiffs to establish the case have produced exhibits in all 37 documents, and Ex.P1 is the registered gift deed executed by the plaintiff No.1 in favor of plaintiff No.2 conveying an extent of 20x60ft. in the suit schedule property in favor of plaintiff No.2. However, the plaintiffs have not produced any documents, both oral and documentary to substantiate with regard to the source of title of the plaintiff -6- NC: 2024:KHC-D:3079 RFA No. 100080 of 2021 No.1 in conveying an extent of 20x60ft in favor of plaintiff No.2. PW2 in his cross-examination has stated that, there was a partition effected between his family members consisting of plaintiff No.1, and the subject property also formed part of partition, and the suit schedule property was allotted to his share, however, categorically admitted that, he does not know the source of title, by which, the plaintiff No.1 acquired right over the suit schedule property.
10. PW3 is the scribe of Ex.P1. In his cross-
examination, he has categorically stated that, he has not seen the source of title or any documentary evidence to substantiate that, the suit schedule property was standing in the name of plaintiff No.1, and the similar admission is made by PW4, who is the attesting witness to Ex.P1.
11. The documents produced by the plaintiffs indicated that, initially the property belonged to one Nagaraj, who had mortgaged the suit schedule property on 5.7.1963 to Hombamma for Rs.800/-, and on 20.4.1964, Nagaraj executed a registered sale deed in respect of the suit schedule property in favor of B.Hombappa. B.Hombappa died leaving behind the -7- NC: 2024:KHC-D:3079 RFA No. 100080 of 2021 vendors of the defendant as his legal representatives, and in the capacity of legal representatives of the deceased B Humbappa, they executed a registered sale deed in favor of the defendant on 17.8.2016 conveying the suit schedule property in favor of his favour for a sale consideration of Rs.2,50,000/-. The encumbrance certificate for the period 1960 to 1970 would clearly establish that one Nagaraj was the owner, and he in turn executed a sale deed in favour of B.Hombappa. The documents produced by the defendant clearly establishes the source of title of the vendors of the defendant in conveying the suit schedule property. The plaintiffs have not produced any documents to substantiate that, the plaintiff No.1 had any right, title over the property in conveying an extent of 20x60ft in favor of plaintiff No.2, and the said gift deed does not establish that, they are the owners of the suit schedule properties. The Trial Court, taking into consideration the oral and documentary evidence in a proper perspective, has rightly dismissed the suit. Therefore, I do not find any illegality in the impugned judgment and decree passed by the Trial Court. Accordingly, I pass the following:
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NC: 2024:KHC-D:3079 RFA No. 100080 of 2021 ORDER The appeal is dismissed.
Sd/-
JUDGE MRK-para 1 BKM-para 2 to end.
CT:ANB List No.: 1 Sl No.: 31