Karnataka High Court
Sri Shivaramu vs Sri D V Shamanna on 29 September, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2023:KHC:35436
RSA No. 175 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.175 OF 2021 (DEC/INJ)
BETWEEN:
SRI SHIVARAMU
S/O LATE DODDA HANUMANTHAPPA,
AGED ABOUT 65 YEARS,
R/AT GUNDLAGURKI VILLAGE,
KASABA HOBLI,
CHICKBALLAPUR TALUK,
CHICKBALLAPUR DISTRICT-562101
...APPELLANT
(BY SRI LOURDU MARIYAPPA A, ADVOCATE)
AND:
Digitally signed
by SHARANYA T
Location: HIGH SRI D V SHAMANNA
COURT OF S/O LATE DIMBARLAHALLI VENKATARAYAPPA,
KARNATAKA
AGED ABOUT 58 YEARS,
R/AT MANCHANABALE VILLAGE,
KASABA HOBLI, CHICKBALLAPURA TALUK,
CHICKBALLAPUR DISTRICT-562101
...RESPONDENT
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 14.08.2019
PASSED IN RA.No.99/2018 ON THE FILE OF THE II
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NC: 2023:KHC:35436
RSA No. 175 of 2021
ADDITIONAL SENIOR CIVIL JUDGE AND JMFC,
CHICKBALLAPURA AND ETC.
THIS APPEAL COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission. Heard the learned counsel appearing for the appellant.
2. The factual matrix of the case of the plaintiff before the Trial Court that the plaintiff is the absolute owner and in peaceful possession and enjoyment of the suit schedule property bearing Sy.No.12/6B totally measuring 1 acre 20 guntas situated at Gundlagurki village and claimed ownership to the extent of 20 guntas. It is contended that the plaintiff had acquired the suit schedule property through inheritance and father of the plaintiff by name Dodda Hanumanthappa was in possession and enjoyment of the suit schedule property during his lifetime and he acquired the same through his ancestors. After the death of Dodda Hanumanthappa, the plaintiff being only son is in lawful possession and -3- NC: 2023:KHC:35436 RSA No. 175 of 2021 enjoyment of the suit schedule property. The defendant is the owner in possession of the adjoining property and the defendant has no manner of right, title, interest over the suit schedule property as he is totally stranger to the same. By colluding with neighbouring land owners, the defendant tried to encroach and dispossess the plaintiff with an intention to grab the valuable property. Hence, prayed the Court to grant the relief of declaration and permanent injunction.
3. On service of notice, the defendant appeared before the Court and filed the written statement contending that one Hanumanthappa was the propositus and he got five sons namely Byrappa, Dodda Venkatappa @ Matada Venkatappa, Bayanna, Chikka Venkatappa and Kurigala Venkatarayappa and all are no more. All the five sons have divided their properties very long back by taking their respective shares of their joint family properties by metes and bounds. It is also contended that there were several other landed properties belonged to -4- NC: 2023:KHC:35436 RSA No. 175 of 2021 their joint family earlier, including the suit Sy.No.12/6B. Among their other properties, Sy.No.13/3 is adjoined with the western side of the said Sy.No.12/6B and forms a single common plot. It is contended that in the said single common plot, some northern portion was fallen to the share of Byrappa who is grandfather of the plaintiff and remaining southern part was fallen to the share of other brothers of said Byrappa. It is further contended that the said Byrappa has two wives by name Narayanamma and Kempamma. The father of the plaintiff by name Dodda Hanumanthappa and others were born through the first wife and Dodda Hanumappa, Chikka Hanumappa and another were born through the second wife.
4. It is further contended that the said Byrappa's heirs have also divided the property very long back itself by taking their respective shares from the share of said Byrappa. It is contended that the said northern side portion of Sy.No.13/3 and Sy.No.12/6B has been fallen to the share of the father of the plaintiff by name Dodda -5- NC: 2023:KHC:35436 RSA No. 175 of 2021 Hanumanthappa and the plaintiff as a GPA holder of his father had sold the above said property and conveyed a registered sale deed dated 25.02.1976 in favour of one Sriramaiah. It is further contended that the said Sriramaiah has in turn sold the same on 16.08.1976 in favour of one Doodamariyappa. Now the said Doddamariyappa is in possession and enjoyment of the property within the above said boundaries. But recently it came to know that while effecting the katha by the Tahasildar in the name of said Doddamariyappa, it was wrongly mentioned Sy.No.12/6A instead of Sy.No.12/6B.
5. It is also contended that his wife T Kamalamma is the absolute owner having right, title and interest and enjoyment over the suit schedule property bearing Sy.No.12/6A to an extent of 20 guntas and another adjoined to the west of this Sy.No.13/4 to an extent of 27 guntas including karab and both the properties are adjoined each other. It is also contended that the wife of the defendant acquired the property within the above -6- NC: 2023:KHC:35436 RSA No. 175 of 2021 mentioned boundaries under the registered sale deed dated 20.04.2009 from her vendor Papanna and others for valuable consideration. Since from the date of purchase, they are in possession and enjoyment of the property.
6. It is further contended that the plaintiff by taking undue advantage of some extent of katha of Sy.No.12/6B which is standing in his father's name, though the same is sold by himself as stated supra long back in the year 1976, in order to knock off the property of the defendant's wife in Sy.No.12/6A, he has filed a false and frivolous suit against him and the plaintiff never in possession and enjoyment of the specific performance within the boundaries of the suit schedule property.
7. The Trial Court having considered the pleadings of the parties framed the Issues and additional Issues and allowed the parties to lead their evidence. Thereafter, considering the material on record comes to the conclusion that the very plaintiff himself has sold the suit schedule property as GPA holder in favour of one Sriramaiah vide -7- NC: 2023:KHC:35436 RSA No. 175 of 2021 sale deed dated 25.02.1976 in respect of Sy.No.12/6B which is fallen to the share of father of the plaintiff and even boundary shown in the said sale deed has been admitted by PW1 during the course of cross-examination and while selling the property by mistake mentioned Sy.No.14 instead of Sy.No.12/6B and comes to the conclusion that when the property was sold in favour of Sriramaiah and said Sriramaiah in turn sold the same in respect of Doddamariyappa vide sale deed dated 16.08.1976, the question of claiming the title does not arise. Hence, all the Issues framed in respect of the plaintiff answered as Negative and dismissed the suit.
8. Being aggrieved by the judgment and decree of the Trial Court, an appeal was preferred before the First Appellate Court. The First Appellate Court having considered the grounds urged in the appeal and also on re-appreciation of material on record comes to the conclusion that the Trial Court has not committed any error in dismissing the suit of the plaintiff and dismissed -8- NC: 2023:KHC:35436 RSA No. 175 of 2021 the appeal. Being aggrieved by the judgment and decree of the First Appellate Court, the second appeal is filed before this Court by the plaintiff.
9. The learned counsel appearing for the appellant would vehemently contend that both the Courts without appreciating both oral and documentary evidence placed on record passed the perverse and unsustainable judgment and decree. The counsel would vehemently contend that the plaintiff had acquired the suit schedule property through inheritance by Dodda Hanumanthappa who is the father of the plaintiff was in peaceful possession and enjoyment during his lifetime. Both the Courts came to the conclusion that the plaintiff has not produced any title deed to prove that the suit land belongs to him. The Trial Court not believed the version of the plaintiff and erroneously comes to the conclusion that the plaintiff has not made out the case and the First Appellate Court also not appreciated the same. Hence, this Court has to admit the appeal and frame the substantial question of law. -9-
NC: 2023:KHC:35436 RSA No. 175 of 2021
10. Having heard the learned counsel appearing for the appellant and also on perusal of the material on record it discloses that the suit is filed for the relief of declaration to declare that the plaintiff is the absolute owner of the suit schedule property i.e., Sy.No.12/6B measuring 1 acre 20 guntas. Out of which, for 22 guntas, subsequently changed the survey number as Sy.No.12/9. In order to substantiate the said contention, except relying upon the oral evidence and RTC, not produced any documents. On the other hand, the defendant has produced the document of sale deeds at Ex.D41 to 43 and those documents are material document and apart from that Ex.D18 to D20 - the sale deeds also produced. The plaintiff also not disputed the fact that as a GPA holder, he has sold the property belongs to his father. The Trial Court in detail discussed that instead of mentioning Sy.No.12/6B by mistake, it is mentioned as Sy.No.14. The Trial Court as well as the First Appellate Court taken note of the boundaries which have been mentioned in the sale deed
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NC: 2023:KHC:35436 RSA No. 175 of 2021 executed by the plaintiff in favour of one Sriramaiah and the said Sriramaiah in turn sold the same in favour of one Doddamariyappa and hence, there are two sale deeds of the year 1976 itself that is on 25.02.1976 and 16.08.1976 and the property also mutated based on the sale deeds.
11. It is also the case of the parties that effecting the katha by the Tahsildar in the name of defendant, it is wrongly mentioned as Sy.No.12/6A instead of Sy.No.12/6B. The Trial Court also in paragraph 52 taken note regarding some discrepancy in mentioning the survey numbers. The First Appellate Court also reassessed the material on record and taken note of the boundaries mentioned in the sale deed. The First Appellate Court observed that once the property was sold by the plaintiff as GPA holder in respect of property which was allotted in favour of his father, the plaintiff cannot claim relief in respect of the said property. The First Appellate Court comes to the conclusion that the Trial Court has not committed any error in dismissing the suit of the plaintiff
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NC: 2023:KHC:35436 RSA No. 175 of 2021 and the plaintiff has to establish his title when the suit is filed for the relief of declaration without depending on the weakness of the defendant. Hence, I do not find any error committed by the Trial Court as well as the First Appellate Court and both the Courts have given anxious consideration to the material on record and in the absence of any perversity, the question of invoking Section 100 of CPC does not arise. Hence, the appellant has not made out any grounds to admit the appeal and frame the substantial question of law.
12. In view of the discussions made above, I pass the following:
ORDER The appeal is dismissed.
Sd/-
JUDGE SN