Karnataka High Court
Basavantappa S/O Gadigeppa Meti vs Basappa S/O Balappa Bhovi on 6 November, 2012
Author: B.Manohar
Bench: B.Manohar
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 6TH DAY OF NOVEMBER 2012
BEFORE
THE HON'BLE MR.JUSTICE B.MANOHAR
RSA No.1158/2003 (DEC & INJ)
BETWEEN:
1. BASAVANTAPPA S/O GADIGEPPA METI,
Age:88 YEARS
DECD BY L RS 1A TO 1E
1A) SMT.SHIVAWWA W/O BASAVANTAPPA METI,
AGE: 70 YEARS,
1B)NAGAPPA S/O BASAVANTAPPA METI
AGE: 45 YEARS, OCC; AGRICULTURE
1C)SHANKAREPPA S/O BASAVANTAPPA METI
AGE: 40 YEARS, OCC: AGRICULTURE
1D)IRAWWA D/O LATE BASAVANTAPPA METI
AGE: 38 YEARS,
1E)SMT.KAMALAWWA D/O LATE BASAVANTAPA
METI, AGE: 36 YEARS
ALL R/O.SIRASANGI VILLAGE, SAUDATTI TQ.
BELGAUM DISTRICT.
2. GADIGEPPA S/O CHANNAPPA METI
49 YEARS
OCC: WORK INSPECTOR,R/AT SIRSANGI VILLAE
:2:
SAUDATTI TALUK
BELGAUM DISTRICT.
... APPELLANTS
(By Sri. : MALLIKARJUNSWAMY B HIREMAT, ADV.)
AND
1. BASAPPA S/O BALAPPA BHOVI
MAJOR, OCC: AGRIL
R/O.SIRASANGI
TALUK SAUNDATTI
DIST.BELGAUM
2. YELLAPPA BALAPPA BHOVI
MAJOR, OCC: COOLIE
R/O.SIRASANGI
TALUK SAUNDATTI
DIST.BELGAUM
3. PARVATEWWA W/O RAMANNA BHOVI
MAJOR, OCC: HOUSEHOLD WORK
R/O.SIRASANGI
TALUK SAUNDATTI
DIST.BELGAUM.
... RESPONDENTS
(By Sri.: B M ELIGAR, ADV.)
RSA FILED U/S.100 OF CPC AGAINST THE
JUDGMENT AND DECREE DATED 5.11.2003 PASSED
IN R.A.NO.78/1996 (OLD NO.21/1992) ON THE FILE
OF THE CIVIL JUDGE (SR.DN.), SAUNDATTI,
ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGMENT AND DECREE DATED 21.9.1992 PASSED
IN O.S.NO.33/1989 ON THE FILE OF THE MUNSIFF,
SAUNDATTI.
:3:
THIS APPEAL COMING ON FOR FINAL
HEARING THIS DAY, THE COURT DELIVERED
THE FOLLOWING:
JUDGMENT
The appellants are the defendants in O.S.No.33/1989. Being aggrieved by the judgment and decree dated 5/11/2003, made in RA No.78/96, passed by the Civil Judge (Sr.Dn.), Saundatti, setting aside the judgment and decree dated 21/9/1992, made in OS No.33/1989 passed by the Munsiff, Saundatti, have filed this appeal.
2. The facts of the case are as follows:
The respondents 1 to 3 herein are the plaintiffs. They filed a suit seeking for declaration, declaring that the plaintiffs are the absolute owners of the suit schedule property and for permanent injunction restraining the defendants from putting up any construction and also for recovery of the suit schedule property. In the plaint, it was contended that that the :4: property bearing VPC Nos.561/1 and 561/2 situated at Sirsangi village in all measuring 36' east-west and 75' north-south belongs to Venkappa Hanamappa Bhovi, who is the grandfather of the plaintiffs. The VPC records for the year 1943-44 stands in the name of Venkappa Hanamappa Bhovi. After his death, his only daughter Basawwa succeeded the assets of the deceased. The plaintiffs are the children of the said Basawwa. After the death of the grandfather of the plaintiffs, Basawwa became the absolute owner. After her death, the plaintiffs became the absolute owners of the property. They have been in lawful possession and enjoyment of the suit schedule property. However, by inadvertence and due to the ignorance, the mother of the plaintiffs has not made an application for mutation of her name in VPC records, in respect of the suit schedule property. It continues to be in the name of their father Venkappa Hanamappa Bhovi. In the year 1986, the second plaintiff came to Sirsangi village to pay :5: the VPC tax in respect of the said property. Then only he came to know that the name of the original owner in respect of the suit schedule property has been changed, without notice to the plaintiffs. Immediately, thereafter, an application has been made to the VPC, Sirsangi, to mutate their names. However, the VPC has not taken any action. Hence, one more application has been made on 26/9/1987 to enter their names. Further, the MPC did not take any action. However, the MPC Sirsangi passed a resolution on 28/9/1987 to enter the name of the second defendant in respect of the suit schedule property. Before mutating the name of the second defendant, no notice has been given to the plaintiffs. Their application is still pending consideration before the competent authorities. Further, the VPC bifurcated the site into VPC No.561/1 and 561/2, which is also contrary to law. Further, it was alleged that the second defendant has recently constructed the building in the suit schedule property without the permission of VPC :6: and they encroached upon 5 feet area towards eastern side of the suit property. The second defendant is very influential person in the village and with the high- handed manner had put up the construction. Further, the land of the plaintiffs is being measured and the defendants started digging to lay further construction and laying further foundation. In view of the same, the plaintiffs have filed the suit with the above prayer.
3. In pursuance to the notice issued by the Trial Court, the defendants entered appearance. The first defendant filed written statement and the second defendant adopted the same. In the written statement defendants have denied the averments made in the plaint in toto. They have contended that the plaintiffs are not the owners of the suit schedule property. Further, the grandfather of the plaintiffs Venkappa Hanamappa Bhovi is not the real owner of the suit schedule property. They have denied that the Basawwa :7: is the daughter of Venkappa Hanamappa Bhovi. Further, they have admitted that the plaintiffs are the children of Basawwa. It is the specific case of the defendants that one Venkappa Fakirappa Bhovi is the owner of suit schedule property. The said Venkappa Fakirappa Bhovi entered into an agreement of sale in the year 1976 with the defendants as per the oral agreement and hence the names of the defendants has been mutated in respect of the suit schedule property. After the death of Venkappa Fakirappa Bhovi, his three children had executed the sale deed in favour of defendants 1 and 2 on 16/3/1989. Thereafter, they have put up construction after obtaining necessary permission from the competent authority. Hence, the plaintiffs have no right, interest over the suit schedule property. The defendants have been in possession from the year 1977. Hence, the plaintiffs have no right interest in respect of suit schedule property. Further, the plaintiffs are the permanent residents of Navalgund :8: village. They do not have any property in Sirsangi village. Hence, sought for dismissal of the suit.
4. On the basis of the pleadings of the parties, the Trial Court framed the following issues:
i) Whether the plaintiffs prove that they are owners and possessors of the suit property?
ii) Whether the plaintiffs prove that
defendant No.2 has encroached 5ft.
area towards western side in the suit
property?
iii) Whether the plaintiffs are entitled for
mandatory injunction sought?
iv) Whether plaintiffs prove the alleged
interference?
v) Whether plaintiffs are entitled for
mesne profits?
vi) What Decree or Order?
5. In order to prove their case, the second plaintiff examined himself as PW-1 and has examined one more witness as PW-2 and got marked the documents as Exs.P1-P15. On behalf of the defendants, the first :9: defendant examined himself as DW1 and examined two other witnesses as DWs-2 and 3 and relied upon Exs.D1 to D14.
6. The Trial Court after considering the arguments addressed by the parties and examining the oral and documentary evidence let in by the parties, held issue Nos.1 and 4 in negative. However, the plaintiffs have not pressed in respect of issue Nos.2, 3 and 5.
Consequently, the Trial Court by its judgment and decree dated 21/9/1992, dismissed the suit holding that the plaintiffs have failed to prove that they are the owners of the suit schedule property. The plaintiffs being aggrieved by the judgment and decree dated 21/9/1992 filed RA No.78/1996 on the file of the Civil Judge (Sr.Dn), Sundatti, contending that the judgment and decree passed by the Trial Court, is contrary to law and without considering the oral and documentary evidence let in by the parties. Further, contended that : 10 : the Trial Court has completely over looked Ex.P7, which is the property extract for the year 1943-44 and it clearly discloses that Venkappa Hanamappa Bhovi is the owner of the suit schedule property. On the other hand, the defendants have not produced any material before the Court to show that Venkappa Fakirappa Bhovi is the owner of the suit schedule property, except producing the mutation entry from the year 1981-1982 onwards, which shows that Venkappa Bhovi is the owner of the property. The defendants will not get any right over the suit schedule property. Hence, the finding of the by the Trial Court is contrary to law.
7. The Lower Appellate Court after considering the arguments addressed by the parties, framed the following points for its consideration:-
i) Whether the judgment and decree under appeal are contrary to law and evidence on record?
ii) Whether there are any grounds for this Court to interfere in the judgment and decree under appeal?: 11 :
iii) Whether the plaintiffs were entitled for the relief as claimed for in the plaint?
iv) What decree or order?
8. The Lower Appellate Court, on appreciating the oral and documentary evidence and after considering the arguments addressed by the parties held point Nos.1 and 2 in the affirmative, point No.3 in partly affirmative and consequently, by its judgment and decree dated 5/11/2003 allowed the appeal, set aside the judgment and decree made in OS No.33/1989 and declared that the plaintiffs are the owners of the suit schedule property and restrained the defendants from interfering with the peaceful possession and enjoyment of the suit schedule property. However, the relief of mandatory injunction and recovery of encroached portion is rejected. The defendants in the suit being aggrieved by the judgment and decree dated 5/11/2003 made in RA No.78/1996 filed this appeal. : 12 :
9. Sri. Mallikarjunaswamy B.Hiremath, advocate appearing for the appellants contended that the judgment and decree passed by the Lower Appellate Court is contrary to law and evidence on record. The plaintiffs have not produced any documents to show that Venkappa Hanamappa Bhovi is the owner of VPC No.561/1 and 561/2 situated at Sirsangi village except entry for the year 1943-44, no document had been produced. They are the permanent residents of Navalgund village. Only in the year 1986, they came to Sirsangi village for coolie work. PW-2 in his evidence admitted that the plaintiffs are the permanent residents of the Navalgund village. They came to Sirsangi village only in the year 1986-87 for coolie work. They does not have residential house at Sirsangi village. No document has been produced to show that Basawwa is the daughter of Venkappa Hanamappa Bhovi. Basawwa died in the year 1976 itself. The specific case of the : 13 : plaintiffs is that after the death of Venkappa Hanamappa Bhovi, they have not taken any steps to change the mutation entry. The steps have been taken only in the year 1986 when they came to Sirsangi village. No document has been produced to show that Venkappa Hanamappa Bhovi is the grandfather of the plaintiffs. The Lower Appellate Court relying upon the stray sentence made in the cross examination to the effect that Basawwa is the daughter of Venkappa Hanamappa Bhovi came to the conclusion that the plaintiffs are the owners of the property and set aside the order passed by the Trial Court, which is contrary to law.
10. Sri. Mallikarjunaswamy B.Hiremath further contended that after the purchase of property in the year 1989 they had built a house and residing there. In the year 1980 itself VPC has given different numbers as 561/1 and 561/2. The appellants have purchased the : 14 : property as per the two sale deeds Exs.D1 and D2. The Lower Appellate Court without considering any one of the contentions raised by the defendants set aside the judgment and decree passed by the trial Court, which is contrary to law.
11. Though the respondents are represented by their Advocate, there was no representation on behalf of the respondents. Though the matter was taken up for hearing on 5/11/2012, it was continued to 6/11/2012.
On the both the dates, the advocate for the respondents remained absent. In the absence of the counsel for the respondents, the matter was taken up for hearing.
12. The above appeal was admitted for considering the following substantial questions of law:-
i) Whether the Lower Appellate Court is justified in reversing the findings of the trial court without appreciating the evidence let-in by the parties in a proper perspective?: 15 :
ii) Whether a stray admission of DW3 can be a ground to reverse the findings of the Trial Court by the Lower Appellate Court?
13. The case of the plaintiffs is that they are the grand children of Venkappa Hanamappa Bhovi, who is the owner of VPC 561/1 and 561/2 measuring 36 ft x 75 ft situated at Sirsangi village. After the death of the grandfather on 10/4/1979, the mother of the plaintiffs has not taken any steps to change the entries in her name. After the death of the mother, the plaintiffs in the year 1986 came to Sirsangi village to pay the property tax to the VPC. Then only they came to know that the RTC have been changed without notice to the plaintiffs. Their specific case is that an application has been made for change of mutation entry, either village Panchayat or the Mandal Panchayat has not taken any action. In view of that they filed a suit seeking for declaration as well as injunctions. They relied upon Ex.P7, which is the property extract of the year : 16 : 1943-44. In that property extract, the name of Venkappa Hanamappa Bhovi was shown as owner of the property bearing No.281, which was subsequently re-numbered as VPC Nos.561/1 and 561/2.
14. On the other hand, case of the defendants is that Venkappa Fakirappa Bhovi is the owner of the said property, the defendants having entered into an oral agreement of sale in the year 1976. Pursuant to the said oral agreement of sale, Varadi has been given to VPC and from the year 1981 onwards and the mutation entry stands in the name of the defendants. After the death of Venkappa Fakirappa Bhovi, his children executed sale deed dated 16/3/1989 in favour of defendant Nos.1 and 2 as per Exs.D1 and D2. They have constructed a house and residing therein. The plaintiffs have no right in respect of the suit schedule property.
: 17 :
15. The second plaintiff examined himself as PW-
1. In the examination-in-chief, he has reiterated the plaint averments. In the cross-examination, he has admitted that he is a permanent resident of Navalgund village. Only in the year 1986 he went to Sirsangi for payment of tax. Then he came to know that the mutation entry has been changed in the name of some other person. Prior to 1986 he has not taken any steps to verify the mutation entries. He expressed that the mutation entry might have been in the name of his grandfather Venkappa Hanamappa Bhovi. He does not have any house in Sirsangi village. They have not produced any material to show that Basawwa is the daughter of Venkappa Hanamappa Bhovi. He was died in the year 1970. PW-2 is the independent witness. In the cross examination he has admitted that the plaintiffs had come to Sirsangi village during the year 1987 for coolie work. They had no house at Sirsangi village. He has denied the suggestions made by the : 18 : defendants that the defendants were in possession of the property for more than 30 to 40 years.
16. DW-1 in his evidence deposed that, he owns the land adjacent to the suit schedule property. It was measuring about 60ft x 40ft and they have constructed the house adjacent to the said property. The suit schedule property was purchased by the defendants on 16/3/1989 as per the Ex.D1 and Ex.D2, from the children of Venkappa Fakirappa Bhovi. The property stands in the name of Venkappa Bhovi. As per the oral agreement of sale, he has agreed to sell the property in the year 1976. Venkappa Fakirappa Bhovi died on 16/11/1986. After his death, his children have executed the sale deed. Even prior to the purchase of the property, on the basis of the Varadi given by the parties, the VPC has changed the mutation entry in the name of the defendants. DW-2 is one of the independent witness. He has deposed that the : 19 : defendants have been in possession of the suit schedule property and constructed the house and residing therein. DW-3 has also deposed in the same lines. In the cross- examination, DW3 has stated that Basawwa is the daughter of Venkappa Hanamappa Bhovi and the plaintiffs are the children of Basawwa. Further, he has denied the suggestions made by the plaintiffs that the suit schedule property originally belong to Venkappa Hanamappa Bhovi.
17. The Trial Court on the basis of the oral and documentary evidence let in by the parties, found that the plaintiffs have not produced any documents to show that Venkappa Hanamappa Bhovi is the owner of the property except producing Ex.P7, which is the property extract of the year 1943-44. The oral evidence let in by the parties is not supporting the case of the plaintiffs. Accordingly, dismissed the suit filed by the plaintiffs. Further, the Lower Appellate Court in RA No.78/1996 : 20 : filed by the plaintiffs came to the conclusion that DW-3 in his cross-examination admitted that Basawwa is the daughter of Venkappa Hanamappa Bhovi and plaintiffs are her children. Ex.P7 is the property extract for the year 1943-44 which stands in the name of Venkappa Hanamappa Bhovi. Hence, the plaintiffs have proved that they are the owners of the suit schedule property. Accordingly, set aside the judgment and decree passed by the Trial Court and allowed the appeal and declared that the plaintiffs are the owners of the property.
18. Sri. Mallikarjunaswamy B.Hiremath, Advocate appearing for the appellants contended that the judgment and decree passed by the Lower Appellate Court is contrary to law and the Lower Appellate Court cannot rely upon the stray sentence made by DW-3, in his cross examination and come to the conclusion that the plaintiffs are the owners of the suit schedule property. He also relied upon the judgment in the case : 21 : of Smt.Parameshwari Bai Vs. Muthojirao Scindia reported in AIR 1981 KARNATAKA 40 and contended that stray sentences elicited in the cross-examination could not hardly be construed as admission. Further, the plaintiffs have not produced any documents to show that they are the owners of the property except Ex.P7, which is not a conclusive proof to come to the conclusion that Venkappa Hanamappa Bhovi is the owner and Basavva is the daughter of Venkappa Hanamappa Bhovi and that the plaintiffs are the children of Basavva.
19. On examination of the oral and documentary evidence, I find that, except Ex.P7, the plaintiffs have not produced any documents to show that Venkappa Hanamappa Bhovi is the owner of the suit schedule property and that Basavva is the daughter of Venkappa Hanamappa Bhovi. Further, the defendants have also not produced any documents to show that Venkappa : 22 : Fakkirappa Bhovi is the owner of the suit schedule property. The mutation entries stand in the name of Venkappa Bhovi. It is not known as to who is Venkappa Bhovi, whether he is the grandfather of the plaintiffs or the father of the vendor of the defendants. The grandfather of the plaintiffs is Venkappa Hanamappa Bhovi and the father of the vendor of the defendant is Venkappa Fakkirappa Bhovi. In the mutation entry for the subsequent years 1943-44, it stood in the name of the Venkappa Bhovi. The trial Court relying upon the mutation entry held that the plaintiffs have failed to establish that Venkappa Hanamappa Bhovi is the owner of the property who is also called as Venkappa Bhovi. The defendants have also not examined any independent witnesses to show as to who is the owner of the suit schedule property. Venkappa Hanamappa Bhovi died on 10.04.1970 and Venkappa Fakkirappa Bhovi died on 16.11.1989. The mutation entries show that Venkappa Bhovi is the : 23 : owner of the property and from 1980-81 onwards, the name of the defendants is shown though they have purchased the property on 16.03.1987. The trial Court as well as lower appellate Court have not critically examined the matter in this regard. The trial Court dismissed the suit only on the ground that the relationship with the Venkappa Hanamappa Bhovi and Basavva is not proved. The lower appellate Court decreed the suit only on the basis of Ex.P7, which is the property extract for the year 1943-44 and on the evidence of DW3 in the cross-examination to the effect that the Basavva is the daughter of Venkappa Hanamappa Bhovi. No finding has been given with regard to the ownership of the suit schedule property. The specific case pleaded by the plaintiffs is that they came to Sirsangi village only in the year 1986-87 and they are permanent residents of Navalgund village. PW2 also deposed that the plaintiffs are not the permanent residents of Sirsangi village. It is not safe to decree the : 24 : suit only on the basis of Ex.P7. Hence, the matter has to be considered by the trial Court afresh and to give a finding as to whether Venkappa Hanamappa Bhovi or the Venkappa Fakkirappa Bhovi is the owner of the suit schedule property, whether Basavva is the daughter of Venkappa Hanamappa Bhovi and the mother of the plaintiffs. The appreciation of evidence by the lower appellate Court is not in proper perspective. Hence, the matter has to go back to the Trial Court for reconsideration. Since, the matter requires to be reconsidered afresh, the matter is remanded back to the Trial Court for reconsideration, without expressing any opinion with regard to the substantial questions of law framed in the above appeal.
20. Accordingly, I pass the following order:
ORDER i. The appeal is allowed.: 25 :
ii. The judgment and decree dated 05.11.2003 passed by the Civil Judge (Sr.Dn.), Saundatti made in R.A.No.78/1996 and the judgment and decree dated 21-09-1992 made in O.S.No.33/1989 passed by the Munsiff, Saundatti are set aside. iii. The matter is remitted back to the trial Court to reconsider the matter afresh and pass an appropriate order in accordance with law after giving an opportunity to the parties.
Sd/-
JUDGE Vmb/vnp