Karnataka High Court
Smt.Lakshmamma @ Achakka Dead By Lrs vs Sri.Rajesh S/O Late Ranganatha on 26 November, 2012
Author: B.Sreenivase Gowda
Bench: B.Sreenivase Gowda
1
RSA 413/2009
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 26TH DAY OF NOVEMBER, 2012
BEFORE
THE HON'BLE MR. JUSTICE B.SREENIVASE GOWDA
R.S.A. NO.413 of 2009
BETWEEN:
1. Smt. Lakshmamma
@ Achakka,
Dead by LR's
a) Bharathamma,
W/o Obalesha,
Aged about 47 years,
Occ: Teacher,
Parvathinagara Govt. Primary School,
Bellary - 583 101.
b) Smt. V. Sathyavathi,
W/o late Sri. Ramakrishnaiah,
Aged about 59 years,
R/o Jajur Village Tq: Challakere - 577 522.
...Appellants
(By Sri. G.Shankar Goud of Goud and Associates, Advs.)
AND:
1. Sri. Rajesh,
S/o late Ranganath,
Aged about 28 years,
2. Sri. Ravindra,
2
RSA 413/2009
S/o late Ranganatha,
Aged about 25 years,
Both are R/o PWD Housing Board,
No.5, Near Eshwara Temple,
Bellary - 583 101.
... Respondents
(R1, R2 - Served)
This RSA is filed under section 100 of Criminal
Procedure Code, against the Judgment & Decree dated
29.01.2009 in R.A. No.56/2006 on the file of the Civil
Judge (Sr.Dn.), Challakere, partly allowing the appeal filed
against the Judgment and Decree dated 29.07.2006,
passed in O.S. No.195/2002 on the file of the Civil Judge,
(Jr.Dn.), Challakere.
This appeal coming on for Orders, this day, the court
delivered the following:
JUDGMENT
This second appeal is by the defendants in O.S. No. 195/2002 and appellant in R.A.56/2006 in partly allowing his appeal and setting aside the judgment and decree passed by the Trial Court in respect of the entire portion of the suit schedule property and confirming the judgment and decree passed by the Trial Court in respect of the suit residential house measuring East to West 20' and North to South 25' situated on the southern portion of the suit property and directing the defendants to hand over the 3 RSA 413/2009 said residential portion of the house property in favour of the plaintiffs have preferred this appeal.
2. I have heard the learned counsel for the appellants and perused the judgments and decrees of the courts below.
3. The point that arises for my consideration is:
Whether there is any substantial question of law which arises for consideration in this appeal.
4. My answer is in the negative for the following reasons:
Learned counsel for the defendants - appellant herein submits that the judgments and decrees passed by the courts below are contrary to law, facts and material evidence borne out on record. He submits courts below have grossly erred in holding that the defendants have not perfected their title to the suit schedule property by adverse possession, although they were in possession and enjoyment of the suit schedule property for a longtime, 4 RSA 413/2009 without their being any outside interference for more than 50 years. He submits courts below are not justified in holding defendants are in permissive possession of the suit schedule property. Therefore, he prays for allowing the appeal by answering the substantial question of law urged in the appeal in favour of the appellants.
5. The Plaintiffs-respondents herein were served with the notice of this appeal and they remained unrepresented.
6. The case of the plaintiffs is the suit schedule property was earlier belonged to their grandfather Sri. Muthurashi Govindappa who constructed a house measuring 20ft x 25ft in the open space and after his death plaintiffs became the owners of the suit property and till the year 1985, the plaintiffs were in possession of the same. The first defendant is the sister of their father and 2nd defendant is the daughter of 1st defendant. As the plaintiff's mother was working in a Co-operative Department at Bellary they were staying in Bellary and 5 RSA 413/2009 therefore, they handed over the possession of the suit house to the defendants in the year 1985 on rental basis who started running a fair price shop in the suit house. The plaintiffs are the owners and entitled for possession of the suit schedule property. The defendants colluding with the panchayath officials changed the khatha number as 85 and property No.123 and 372. Now the plaintiffs are intending to reside in the suit house and the defendants have got some other residential house in the village. Therefore, the plaintiffs filed this suit seeking recovery of possession of the suit property from the defendants.
7. The defendants have filed written statements denying the case of the plaintiffs and contended that it is false to say that one Muthurashi-Govindappa was the owner of the suit schedule property during his life time and after his death plaintiffs became the owners. They admitted their relationship with the plaintiffs but denied the other facts stated in para 4 of the plaint as false and frivolous. They contended it is false to state that the defendants are 6 RSA 413/2009 permitted to reside in the suit house and not to do any business. It is false to state that the plaintiffs have not handed over the suit property on rental basis and defendants have changed the katha number of the suit property. In fact defendants have obtained the suit property for rent of Rs.20/- per month 50 years ago and it is false to state that the plaintiffs have not handed over the suit property on rental basis and the defendants have changed the property number. In fact the defendants obtained house bearing khatha No. 85 property No.123, 371 and 372 and they are regularly paying rent to the plaintiffs and to their parents. In the year 1985-86, they started a Fair-price shop in the suit house. The plaintiffs are owners of the house described in O.S.No.96/2002. The plaintiffs have no right or interest towards north of the suit house. In fact Jajur Gram Panchayath granted a site bearing khatha No. 427 in favour of 2nd defendant which is situated towards north of the suit house. Now the plaintiffs filed a petition before the Executive Officer of Taluk Panchayath calming right over the area measuring 7 RSA 413/2009 60' x 60', therefore this suit is not maintainable. Further, plaintiff's mother had already sold all the agricultural lands at Jajur Village and therefore there is no necessity for the plaintiffs to reside in the suit house and their prayer cannot be granted. The defendants are in possession and enjoyment of the suit house since 50 years and they have perfected their title over the suit property by adverse possession and they prayed for dismissal of the suit.
8. On the basis of the pleading of the parties, the trial Court has framed the following issue:
1) Whether the plaintiffs prove that they are the absolute owners of the suit schedule property?
2) Whether the plaintiffs further prove that they put the defendants in permissive - possession of the suit schedule property?
3) Whether the defendants prove that they are perfected their title over the suit schedule by way of adverse possession?
4) Whether the plaintiffs are entitled for the relief of possession as sought for?
5) What order or decree?8
RSA 413/2009 The plaintiffs in order to prove their case have examined the first plaintiff as PW 1 and a witness as PW 2 and have produced 17 documents which were marked as Ex. P 1 to P 17.
9. On the other hand the defendants have examined defendant No. 2 as DW 1 and two witnesses as DWs 2 and 3 and have produced 8 documents which were marked as Ex. D 1 to D 8.
10. The trial Court upon consideration of oral and documents evidence on record answered issue Nos. 1,2 and 3 in the affirmative and issue No. 3 in the negative holding that the plaintiffs have proved they are the owners of the suit property and defendants are in permissive possession of the suit property and the defendants have failed to prove that they have perfected their title over the suit property by adverse possession and decreed the suit directing the defendants to hand over the possession of the suit property bearing khatha NO. 86 property Nos. 123, 9 RSA 413/2009 390, 391 measuring East-West 27' and 60' in front and back portion respectively and 93' North-South including house measuring East - West 20' North - Sought 25' situated at Jajur Village.
11. The defendants aggrieved by the said judgment and decree of the trial Court challenged the same in R.A.No.56/2006 before the lower Appellate Court. The lower Appellate Court on re-appreciation of oral and documentary evidence on record allowed the appeal in part and modified the judgment and decree of the trial Court by setting aside the judgment and decree in respect of the entre portion of the suit schedule property and confirmed the judgment and decree of the trial Court in respect of residential house measuring East-West 20' and North - South 25' situated on the Southern portion of the suit property and directed the defendants to hand over the possession of suit schedule residential house in favour of the plaintiffs within two months from the date of its order. 10 RSA 413/2009
12. It is against the said judgment and decree of the lower Appellate Court the defendants have preferred this second appeal.
13. It is to be noted herein that the plaintiffs have not preferred any appeal against the judgment and decree of the lower Appellate Court in allowing the appeal filed by the defendants in part and setting aside the judgment and decree passed by the trial Court in decreeing the suit in respect of entire portion of the suit schedule property and confirming the judgment and decree of the trial Court in respect of suit residential house measuring East-West 20' and North -South 25' situated on the Southern portion of the suit property and directing the defendants to hand over the possession of suit schedule residential house in favour of the plaintiffs.
14. The case of the plaintiffs is the suit schedule property earlier belonging to their grand father Muthurashi-Govindappa who constructed a house 11 RSA 413/2009 measuring 20ft x 25ft in the open space and after his death they became the owners and they were in possession of the same. As their mother was working in a Co- Operative Departments at Bellary, they felt inconvenience to stay in the said house and therefore they permitted the defendants to stay in the said house property. But, the defendants started to run a fair price shop and got the khatha number changed and the defendants have got an alternative house in the very same village and therefore they have brought the suit for recovery of possession of the suit property from the defendants.
15. Whereas, the defendants in their written statement have contended that they are not in permissive possession of the suit property, they are in possession of the suit property on rental basis and they were paying rent regularly to the parents of the plaintiffs and to the plaintiffs in respect of a house measuring 20ft x 25ft. Since the defendants have been in possession of the same for the last 50 years they have perfected their title over the 12 RSA 413/2009 suit property by adverse possession and prayed for dismissal of the suit.
16. The trial Court decreed the suit in respect of the entire suit schedule property. The lower Appellate Court noticing the mistakes that the decree passed by the trial Court is contrary to the prayer made in the plaint wherein the plaintiffs had sought for possession of suit schedule property measuring East-West 20' and North-Sought 25' set aside the said judgment and decree of the trial Court and decreed the suit in respect of residential house measuring 20ft. x 25ft. The defendants having contended that they are in possession of the suit house on rental basis and they were paying rent to the parents of plaintiffs and after their death they were paying rent to the plaintiffs estopped from contending that they have perfected their title to the property by adverse possession.
17. I have carefully gone through the judgments and decrees of the Courts below more particularly the 13 RSA 413/2009 judgment and decree of the lower Appellate Court and I do not find any illegality or infirmity in the judgment and decree of the lower Appellate Court warranting interference. Apart from that there is no substantial question of law which arises for consideration in this second appeal.
18. For the reasons stated above the appeal is dismissed as devoid of merit.
There shall be no order as to costs.
Sd/-
JUDGE Vb/-