Karnataka High Court
K Narayana Gowda vs B H Lokesh on 25 August, 2022
Author: V. Srishananda
Bench: V. Srishananda
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
R.F.A.No.1617/2007(INJ)
BETWEEN
K NARAYANA GOWDA
S/O K KARIYAPPAA
SINCE DEAD BY LRS
1. K.N.GOPINATH
S/O LATE K.NARAYANA GOWDA
AGED ABOUT 55 YEARS
2. SMT.RAJESHWARI
W/O LATE K.NARAYANA GOWDA
AGED ABOUT 70 YEARS
BOTH ARE RESIDING AT NO.29,
JANANI NILAYA
10TH MAIN, 11TH CROSS
NANDANAM COLONY
HORAMAVU
R.M.NAGARA
BANGALORE - 560 043
...APPELLANTS
(BY SRI M.S.VARADARAJAN, ADVOCATE)
AND
B H LOKESH
S/O LATE B.T.HANUMANTHAPPA
2
AGED ABOUT 52 YEARS
NO.271, 1ST CROSS, 6TH BLOCK
II PHASE, BANASHANKARI III STAGE
BANGALORE -560 085
...RESPONDENT
(BY SRI KESHAV R. AGNIHOTRI, ADVOCATE)
THIS RFA IS FILED UNDER SECTION 96 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED:02.04.2007
PASSED IN O.S.NO.2616/2002 ON THE FILE OF THE 11TH
ADDL. CITY CIVIL JUDGE, CITY CIVIL COURT, BANGALORE
(CCH-8), DECREEING THE SUIT FOR PERMANENT
INJUNCTION.
THIS APPEAL COMING ON FOR HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard Sri.M.S.Varadarajan, learned counsel for appellants and Sri.Keshav Agnihotri, learned counsel for respondent.
2. Defendant being aggrieved by the Judgment and decree passed in O.S.No.2616/2002 dated 02.04.2007 has preferred this appeal.
3. Brief facts of the case are as under:
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Plaintiff-B.H.Lokesh claiming to be the owner of site Nos.19 and 20 having purchased from his vendor Sri.Subramani, who in turn got the property at a partition, was in possession of the suit schedule property on and from the date of sale being 09.10.1986. It is also contended by the plaintiff that he enjoyed the said sites as absolute owner. On 14.04.2002 there was an interference by the defendant which necessitated the plaintiff to file the suit.
On receipt of suit summons, defendant appeared and filed written statement denying the plaint averments in toto. He specifically contended that in Vijinapura Village, in Sy.No.12, out of 3 acres 23 guntas, ChikkaKariyappa and his three children namely Nanjundappa, Narayana Gowda and Subramani enjoyed the property jointly. It is also contended that it is their joint family property and as per `Palupatti' dated 4 20.03.1984, the site in question has fallen to the share of defendant and therefore, he is the lawful owner of the said property and sought for dismissal of the suit.
4. Based on the rival contentions of the parties, following issues were framed:
"1. Whether the plaintiff proves that he is in lawful possession of the suit schedule property as on the date of the suit?
2. Whether he further proves that the defendant is interfering with the possession over the suit schedule property?
3. Whether the plaintiff is entitled for the injunction as prayed for?
4. What order or decree?"
5. In order to prove the case of the plaintiff, plaintiff got examined himself as PW-1 and one witness by name C.Vishwanath as PW-2 to establish the 5 possession of the suit schedule property. On behalf of plaintiff six documents were exhibited and marked as Exhibits P-1 to P-6. Among them Ex-P1 is Absolute sale deed, P2- Khatha extract, P3-Tax Paid Receipt, P-4- Layout Map, P-5 and 6 Encumbrance certificates.
6. To counter the evidence placed by the plaintiff, defendant's son by name Gopinath is examined as DW-
1. On behalf of the defendant, 25 documents were exhibited and marked as Exhibits D-1 to D-25. Among them Ex.D-1- Copy of Power of Attorney, D-2-Copy of Partition Deed, D-3-13-RTC extracts, D-14-Mutation Register, D-15-Record of Rights, D-16 and 17- Tax Paid Receipts, D-18-Survey Sketch, D-19-Certified copy of Judgment in O.S.No.10413/1993, D-20-Certified copy of Judgment in O.S.No.11057/1993, D-21-Certified copy of Judgment in O.S.No.1554/1993, D-22-Certified copy of Judgment in O.S.No.10779/1997, D-23-Certified copy of 6 Judgment in O.S.No.10781/1997, D-24-Certified copy of Judgment in O.S.No.10782/1993, D-25- Order of Deputy Commissioner, Bangalore.
7. On conclusion of the trial, trial court heard the parties and after cumulative consideration of the oral and documentary evidence on record, decreed the suit of the plaintiff.
8. Being aggrieved by the same, defendant has filed the present appeal on the following grounds:
The trial court reasoning that since DW-1 has admitted that respondent's vendor K.Subramani has also got a share in Sy. No.12 in the family palu patti, the respondent's suit deserves to be decreed is clearly erroneous.
In this context, the trial court failed to notice that the onus of the respondent did not stop at proving the mere partition but that he had to prove further that the property purchased by him fell in that portion of Sy. No.12, which was allotted to the share of his vendor K.Subramani.
The trial court failed to notice that the respondent has miserably failed to discharge the above burden, more particularly because, the appellant has clearly stated 7 in his written statement, after phodi proceedings his portion is clearly demarcated and assigned new Sy. No.12/2 and that the respondent in the guise of Ex.P1, his sale deed, is attempting to enter upon the appellant's property.
The trial court grossly erred in drawing an adverse inference against the appellant stating that he has not produced the entire palu patti but only a portion of the same i.e., Ex.D2, which is factually incorrect.
The trial Court grossly erred in holding that the boundaries of the schedule property as found EX.P.1 tally with Ex.P.4. The Atlas of Sy.No.12 though it is not so.
Ex.P4 pertains to the Phodi Proceedings with respect to Sy. No.12 and its sub number. Suit property being two sites do not find any mention in Ex. P4 and yet the trial judge has arrived at the above conclusion, which is clearly perverse.
The trial judge committed a serious error in concentrating more on finding out whether respondent's vendor K. Subramani got any share in Sy. No.12 over which there was no dispute whatsoever and without concentrating on the real issue, whether the properties in respect of which the respondent tried to claim an interest, fell in that portion of Sy. No.12, which was allotted to K. Subramani or in Sy. No.12/2 allotted to the appellant.
The trial court grossly erred in not noticing that after the family partition there were revenue proceedings, which ended in favour of the appellant and that in view of the same a bare suit for permanent injunction without seeking declaratory relief was not even maintainable.
The trial court grossly erred in ignoring several judgements marked as Ex.D19 to D24, which suits filed by persons who also claimed to be purchasers of same Subramani have been dismissed.8
The trial courts conclusion in this regard that since respondent is not a party in these suits and therefore these Judgements cannot be made use of by the appellant is clearly erroneous.
In this context the trial court failed to see that those judgements were produced to show that Subramani had executed several sale deeds in respect of properties, which did not belong to him and that from that view point these had a great bearing on the questions involved in the present suit.
The trial court grossly erred in placing too much reliance on the khata endorsement, tax paid receipts and E.Cs. without appreciating that these documents have nothing to do either with title an possession with respect to property in question.
The trial court grossly erred in saddening the appellant with costs.
Viewed from any angle the impugned Judgement and decree are opposed to facts and probabilities of the case. The reasoning of the trial court is clearly erroneous. The impugned judgement and decree are therefore liable to set aside."
9. Reiterating the grounds urged in the appeal memorandum Sri.M.S.Varadarajan, learned counsel for appellants vehemently contended that trial court has failed to note that Subramani did not acquire any right, title and interest to alienate the site Nos.19 and 20 in favour of plaintiff and as such, alleged possession of the 9 plaintiff over suit properties is incorrect. He has also pointed out that as per the Palupatti the portion that has been sold to the plaintiff had not fallen to the share of Subramani and therefore sought for allowing the appeal.
10. Per contra, Sri.Keshav R Agnihotri, learned counsel for plaintiff/respondent Vehemently contended that the trial court has taken note of `Palupatti' and has recorded a categorical finding that the property fallen to the share of Subramani in Sy.No.12, sites have been formed as per the layout map marked at Ex.P-4 and thereafter Subramani sold land to different persons including plaintiff. Thereafter the revenue records have been transferred in the name of the plaintiff and the document marked at Ex.P-2 being the khatha extract, P- 3 is the Tax paid receipt and also taking note of the encumbrance certificates at Ex.P-5 and 6, plaintiff has proved before the trial court that the plaintiff is in lawful 10 possession of the suit property and there was an interference with regard to the suit property and thus granted the decree of permanent injunction which is perfectly justified and sought for dismissal of the appeal.
11. In view of the rival contentions, following points would arise for consideration:
"1. Whether the defendant has made out a case that the plaintiff did not have lawful possession of the suit property as defendant is the owner of suit property?
2. Whether the impugned Judgment is suffering from legal infirmity or perversity, and thus calls for interference?"
12. In the case on hand in order to prove the lawful possession of the suit property, plaintiff got examined himself as PW-1 and another witness who is examined as PW-2. PW-1 has filed an affidavit in lieu of 11 his examination-in-chief as is contemplated under Order 18 Rule 4 CPC reiterating the contents of the plaint and also marked the documents as referred to supra.
13. In the cross examination of PW-1 it has been elicited that before purchase of the schedule property the plaintiff had verified the title deeds and he was of the opinion that his vendor acquired suit schedule property from his father. He has also answered that before getting the sale deed registered, he has contacted an advocate and obtained the legal opinion and thereafter convinced about the title in Subramani, purchased the suit schedule property. He further answered Sy.No.12 was joint family property of ChikkaKariyappa and ChikkaKariyappa had three sons namely Nanjundappa, Narayana Gowda and Subramani. He further answered he is not aware of the partition in the family of ChikkaKariyappa on 20.03.1984. However, 12 he has stated that there were many civil suits between the purchasers and sons of ChikkaKariyappa in respect of Sy.No.12. He had also answered that he is working as Engineer in Peenya and his friend had introduced Subramani to him for purchase of suit schedule property. He has admitted that from the year 1993 till the year 1999 land in Sy.No.12 remained as agricultural land. However, he denied the suggestion that during the said period no sites were formed in the said land. It is also elicited that he does not know what was the extent of land that was allotted to Subramani in Sy.No.12. He further answered that he does not know Nanjundappa was allotted 1 acre 5 guntas, Narayana Gowda was allotted 1 acre 5 guntas and Subramani was allotted 1 acre 13 guntas in Sy.No.12. He admits that after filing written statement he did not make any enquiry as to how much area was allotted to Subramani in the said land as Subramani was not alive. 13
14. He has stated that Subramani has executed sale deed at Ex.P-1 and in Ex.P-4 it is mentioned that owner is one ChikkaKariyappa. He also admits that Ex.P- 4 is not approved by the competent authority. He denies the suggestion that since from the year 1989 there is a litigation between Subramani and his brothers in respect of land in Sy.No.12.
15. PW-2-Vishwanath has filed the affidavit in lieu of examination-in-chief supporting the case of the plaintiff deposing before the court in the form of an affidavit that he is acquainted with the plaintiff for last 20 years and he has visited suit schedule property. He has also stated that Narayana Gowda and four other persons trespassed into the property and tried to dispossess the plaintiff from the suit property. He has further deposed that they even tried to assault plaintiff and himself and other friend of plaintiff who were present at the spot. Neighbours and other persons 14 walking on the road came for their rescue and thereafter defendant and his henchmen went away. He further answered that they had been to suit schedule property on 14.04.2002 in the morning at about 9 a.m. and they noticed that some workers engaged in the work. They had just started cleaning the site at about 10 a.m. by trespassing into suit land with malafide intention of assaulting the plaintiff and his friend and driving away from the suit property. Plaintiff informed him that suit is filed against Narayana Gowda before Civil Court. In his cross examination suggestion is made to him he deposed falsely to help his friend is denied by him.
16. Gopinath, son of defendant is examined as DW-1. He has filed an affidavit in lieu of his examination-in-chief reiterating the contents of the written statement and marked the documents as 15 referred to supra. In his cross examination it is elicited that he has deposed for and on behalf of his father.
17. He admits that ChikkaKariyappa is his grandfather. He admits that Subramani is his junior uncle and Nanjundappa is his senior uncle. He denies the suggestion that suit sites are carved out of Sy.No.12 of Vijinapura Village. He admits that mentioning of Sy.No.12 of Vijinapura in `Palupatti' is correct. He admits that Sy.No.12 measures 3 acres 23 guntas in all. He has further answered that by the `Palupatti' which took place on 20.03.84 his senior uncle has got 1 acre 5 guntas of land and his father has got 1 acre 5 guntas of land and his junior uncle Subramani (vendor of plaintiff) has got 1 acre 13 guntas.
18. He admits that his grandfather ChikkaKariyappa died in the year 1995. He denies the 16 suggestion that Subramani got the land converted for non-agricultural purpose. He answered that he came to know that Subramani has sold the site in favour of plaintiff after filing the suit. He denies the suggestion that plaintiff purchased the property in the year 1986.
19. In his further cross examination, it is elicited that the land out of which suit property is carved out has fallen to the share of Subramani in the joint family partition is false. He denies the suggestion that the revenue records stood in the name of Subramani. He denies that from the year 1986 plaintiff is in lawful possession of the suit property. He denies that on 14.04.2022 his father and his henchmen interfered with the peaceful possession of the suit property.
20. The above evidence on record is sought to be re-appreciated.
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As could be seen from the material on record, plaintiff has purchased suit sites carved out of Sy.No.12 which has fallen to the share of Subramani.
21. Admittedly there is a registered sale deed and thereafterwards Khatha has been transferred in the name of the plaintiff and taxes being collected by the concerned authorities from the plaintiff which establishes that plaintiff is having lawful possession over the property.
22. It is the case of defendant that apart 1 acre 5 guntas had fallen to the share of Nanjundappa and 1 acre 5 guntas to Narayana Gowda and 1 acre 13 guntas has gone to vendor of the plaintiff Subramani.
23. It is pertinent to note that along with `Palupatti' no sketch is found. In order to prove the `Palupatti', no witnesses are examined on behalf of the 18 defendant. Even according to defendant himself that 1 acre 13 guntas has fallen to the share of Subramani. On record, there is a sketch map of the layout formed by Subramani out of which, site Nos.19 and 20 are purchased by the plaintiff by way of registered sale deed in the year 1986.
24. Admittedly DW-1 does not have any personal knowledge in respect of the `Palupatti' or other dealings with the suit schedule property or entire property in Sy.No.12. Nothing prevented Narayana Gowda, the defendant to appear before the court and depose about the contents of `palupatti' or substantiate the defence taken by the defendant that suit schedule property did not form part of the land that has been allotted to Subramani to the extent of 1 acre 13 guntas in the `palupatti'.
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25. Under the circumstances of the case, based on the sale deed, khatha extract, tax paid receipt and encumbrance certificate and also based on layout map produced by the plaintiff, the trial court decreed the suit of the plaintiff for permanent injunction. Trial court believed the version of the plaintiff that on 14.04.2002 there was an interference caused to the peaceful possession and enjoyment of suit property. The deposition of PW-2 as discussed supra assumes significance in this regard.
26. As all these aspects of the matter has been rightly appreciated by the trial Judge while passing the impugned Judgment.
27. If at all defendant has got any right over the property he can as well obtain necessary declaration from the competent court in this regard. At this point of 20 time plaintiff being purchaser of two sites from the share of the land that has fallen to the share of Subramani, defendant cannot interfere stating that it is joint family property and property belong to the defendant.
28. Under such circumstances, the finding recorded by the trial court is just and proper based on sound and logical reasons and absolutely there is no perversity in reaching out that finding even after re- appreciation of the material on record.
29. In view of the forgoing discussion point Nos.1 and 2 are answered in the negative and following order is passed.
Appeal is meritless and is hereby dismissed. No order as to costs.
Sd/-
JUDGE SBN