Karnataka High Court
Sri Umesha @ Umamaheshwara vs Smt.Susheelamma on 5 July, 2024
Author: H.P. Sandesh
Bench: H.P. Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.S.A. NO.757/2009 (DEC)
BETWEEN:
SRI UMESHA @ UMAMAHESHWARA
SINCE DECEASED REPRESENTED
BY LEGAL REPRESENTATIVES
1(a) SMT. LEELAVATHI
W/O UMESHA @ UMAMAHESHWARA
AGED ABOUT 55 YEARS
1(b) SRI KARTHIK S.U.,
S/O UMESHA @ UMAMAHESHWARA
AGED ABOUT 33 YEARS
1(c) SMT. SMITHA S.U.,
D/O UMESHA @ UMAMAHESHWARA
AGED ABOUT 31 YEARS
ALL ARE RESIDENT OF
NO.34, BENAKA, 1ST CROSS,
KANAKA LAYOUT,
SHIMOGA - 577 201.
... APPELLANTS
(BY SRI M.RUDRAIAH &
SRI AJAY KUMAR M., ADVOCATES)
2
AND:
1. SMT. SUSHEELAMMA
W/O LATE R.LAKSHMANA,
AGED ABOUT 50 YEARS
R/O DURGAPPA BUILDING,
R.M.C. ROAD
DAVANAGERE-577001.
2. SAGAR TOWN MUNICIPAL COUNCIL,
NOW CITY MUNICIPAL COUNCIL,
SAGAR-577401,
SHIMOGA DISTRICT
BY ITS CHIEF OFFICER.
... RESPONDENTS
(BY SRI VISHWANATH R.HEGDE, ADVOCATE FOR R2;
R1 - SERVED)
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 10.02.2009
PASSED IN R.A.NO.60/2007 ON THE FILE THE CIVIL JUDGE
(SR.DN) SAGAR AND ETC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 01.07.2024 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
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JUDGMENT
This second appeal is filed against the concurrent finding of the Trial Court as well as the First Appellate Court in granting the relief of declaration and possession in respect of the plaintiff/respondent No.1 herein.
2. Heard the learned counsel appearing for the appellants and the learned counsel appearing for respondent No.2. The plaintiff is served but unrepresented.
3. The parties are referred to as per their original rankings before the Trial Court to avoid confusion and for the convenience of the Court.
4. The factual matrix of the case of the plaintiff before the Trial Court that the suit schedule property is the absolute property of her mother Lakshmamma W/o Subba Rao. After the death of Subba Rao, Lakshmamma and the plaintiff are residing and holding joint possession of the said property. Except the plaintiff, no other issues were there to this Lakshmamma. There is two portions house in the said property. But on 05.09.1971, 4 Lakshmamma expired by leaving the plaintiff alone as her legal heir. After the expiry of her mother, the plaintiff was looking after the suit schedule property and also residing in the same. Within one year of the death of her mother, the plaintiff got married one R Lakshmana of Davanagere, who is the driver by profession. Later on, she has settled at Davanagere along with her husband. During that occasion, she gave two portions of house i.e., the suit schedule property to the tenants. Herself and her husband were looking after the suit schedule property during that occasion. The house situated in the suit schedule property is an old one. So, one portion of the same had fallen down. By considering this aspect, the tenants, without the knowledge of the plaintiff, vacated the house. So, she made her mind to reconstruct the said building. Accordingly, gave application to respondent No.2-Town Municipal Council, Sagara for reducing the assessment of the said property. But during the pendency of the proceedings, one Ammayamma trespassed into the suit schedule property during February, 1982 and since then, occupied the same unlawfully. She did not have any right, title or interest over the suit schedule property to deny the title of 5 the plaintiff over the suit schedule property. Hence, filed the suit for the relief declaration and possession on the ground that defendant No.1 is in unlawful occupation.
5. In pursuance of the suit summons, defendant No.1 appeared and filed the written statement denying the entire averments made in the plaint and also even denied the illegal possession over the suit schedule property by defendant No.1 as alleged in the plaint. It is contended that the plaintiff never demanded the possession of the suit schedule property from her. On the other hand, it is contended that she has purchased the suit schedule property from its previous owner through a registered sale deed for valuable consideration. So, she became the absolute owner of the suit schedule property and in possession of the suit schedule property from the date of purchase. Defendant No.1 also contend that the plaintiff is not at all the daughter of deceased Lakshmamma as alleged by her. Even otherwise, she has perfected her title over the suit schedule property by virtue of adverse possession. During the pendency of the suit, the defendant No.1 expired and her legal 6 heir was brought on record. He also took the contention that the suit schedule property has been granted to his mother i.e., defendant No.1 by defendant No.2/respondent No.2 by virtue of the sale certificate dated 25.05.1988. So, that defendant No.1 was the absolute owner of the suit schedule property. Hence, the plaintiff is having no manner of right, title and interest over the suit schedule property.
6. In pursuance of the written statement, the plaintiff filed the reply contending that the execution of any sale certificate in favour of defendant No.1 during the pendency of the suit will not create any right on her because respondent No.2 had no right to sell the property belonging to the others. Respondent No.2 had issued the sale certificate to the person who is having unlawful occupation under the guise that she is living from long period. But the suit schedule property is absolutely belonged to her mother. Earlier, Lakshmamma W/o Subba Rao was the owner, after her death, the plaintiff is the owner of the suit schedule property and resolution of respondent 7 No.2 is not at all giving any right, title or interest to defendant No.1.
7. During the pendency of the proceedings, respondent No.2 also made as a party and hence, respondent No.2 filed the written statement contending that the suit schedule property was granted to defendant No.1 through a registered sale certificate. It is further contended that as proved from the records, the site which was in possession of the mother of the plaintiff-Lakshmamma W/o Subba Rao has been granted to her by means of registered sale certificate. After that property was sold by the plaintiff to Prabhavati W/o Basavaraj, through her power of attorney holder. Hence, the suit is not maintainable.
8. Based on the pleadings of the parties, the Trial Court framed the following Issues:
1. Whether the plaintiff is the daughter of Lakshmamma W/o Subbarao?
2. Whether the plaintiff was the owner of the suit schedule property?8
3. Whether the plaintiff was in possession of the suit schedule property any time within 12 years prior to the date of the suit and she was dispossessed?
4. Whether the defendant has perfected his title by adverse possession?
5. Whether the plaintiff is entitled to the declaration sought for?
6. Whether the plaintiff is entitled to the possession sought for?
7. Whether the plaintiff is entitled to the mesne profits sought for?
8. What decree or order?
Additional Issue:
1. Whether the defendant No.1(a) proves that by means of sale certificate dated 25.05.1988 he became the owner of suit property?
9. The Trial Court considering the pleadings of the parties allowed them to lead their evidence. In order to prove 9 the case of the plaintiff, examined two witnesses as PW1 and PW2 and got marked the documents at Ex.P1 to P63. On the other hand, defendant examined two witnesses as DW1 and DW2 and got marked the documents at Ex.D1 and D2. The Trial Court having considered both oral and documentary evidence placed on record answered Issue Nos.1 to 3 as affirmative in coming to the conclusion that the plaintiff is the daughter of Lakshmamma and she is the owner of the suit schedule property after the death of her mother and hence, the plaintiff was in possession of the suit schedule property any time within 12 years prior to the date of the suit but she was dispossessed. The contention of defendant No.1 that she has perfected her title by adverse possession and the said contention is negatived by the Trial Court. Hence, the Trial Court comes to the conclusion that the plaintiff is entitled for the relief of declaration and possession as sought and granted the relief as sought by the plaintiff and directed to handover the possession of the suit schedule property in favour of the plaintiff within the time bound period. 10
10. Being aggrieved by the judgment and decree of the Trial Court, an appeal was preferred by the legal representative of defendant No.1 in R.A.No.60/2007 (old No.107/1994). The First Appellate Court having considered the grounds urged in the appeal memo formulated the points which read thus:
1. Whether the appellant shows that the Trial Court erred in holding that the respondent No.1 is the absolute owner of the suit schedule property and also erred in directing the appellant handing over the possession of the property with mense profits?
2. Whether the appellant shows that Trial Court is erred in holding that the suit is maintainable inspite of not challenging the Ex.D1 sale deed and Ex.D2 sale certificate of the respondent No.1?
3. Whether the judgment and decree passed by the Trial Court is arbitrary, capricious and calls any interference?
4. What order?11
11. The First Appellate Court having considered both oral and documentary evidence placed on record answered the points as negative in coming to the conclusion that the Trial Court has not erred in coming to the conclusion that the plaintiff is the absolute owner of the suit schedule property and also not erred in directing the legal representative of deceased defendant No.1 to handover the possession with mesne profits and comes to the conclusion that Ex.D1 sale deed and Ex.D2 sale certificate does not convey any title in favour of defendant No.1 hence, the judgment and decree of the Trial Court does not requires any interference and dismissed the appeal filed by the legal representative of defendant No1. Being aggrieved by the concurrent finding of the Trial Court as well as the First Appellate Court, the present second appeal is filed by the legal representative of deceased defendant No.1 before this Court.
12. The learned counsel appearing for the appellant would contend that the very approach of both the Courts is manifestly illegal inasmuch as both the Courts have totally failed to note that the suit was one for declaration of title and 12 possession hence, the entire burden of establishing the title was on the plaintiff on which, the plaintiff has failed to do the same. It is also further contend that it is clear from the evidence on record that originally the property belonged to respondent No.2- Town Municipal Council, Sagar and it had not been granted the suit schedule property to the plaintiff or her predecessor in title at any point of time. The assessment registers are not the documents of title. It is further contend that both the Courts ought to have noted that the mother of the appellant late Ammayamma who was the original defendant No.1 in the suit was admittedly in possession of the suit schedule property from a long time and consequently, the Town Municipal Council has allotted the said site to the mother of the appellant and also issued a Sale Certificate as per Ex.D2 dated 25.05.1988. Thus, the same establishes that defendant No.1 was the absolute owner having right, title and interest over the suit schedule property.
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13. This Court having considered the grounds urged in the appeal memo, admitted the appeal framing following substantial questions of law:
1. Whether on the facts and in the circumstances of the case, the Courts below are justified in holding that the plaintiff had established her title to the suit schedule property ignoring the fact that the entry of the name in the assessment register does not establish the title to the property and assessment registers are not documents of title?
2. Whether the Courts below are justified in negativing the contentions of defendant No.1 and defendant No.1(a) that the defendant No.1 had become the owner of the suit schedule property on the basis of the Sale Certificate dated 25.05.1988 issued by the Town Municipal Council, Sagar by ignoring Exhibits D1 and D2?14
3. Whether the Courts below are justified in negativing the alternative contention of defendant No.1(a) that his mother having been in uninterrupted possession of the suit schedule property for a period of exceeding 12 years prior to the date of filing of the suit had perfected her title to the suit schedule property by adverse possession?
14. The learned counsel appearing for the appellant in his argument would vehemently contend that the property belongs to respondent No.2 and the appellant's mother was in possession of the suit schedule property and having considered the fact of living long period, respondent No.2 has issued the sale certificate in terms of Ex.D2. It is also his contention that the possession was established by the mother of the appellant and the suit is also not filed within 12 years but the only allegation of respondent No.1 that defendant No.1 trespassed into the suit schedule property but the same has not been substantiated by the plaintiff placing any material before the 15 Court. The counsel further would vehemently contend that both the Courts have committed an error in coming to the conclusion that the plaintiff has established the title over the suit schedule property and erroneously directed defendant No.1 to handover the possession of the suit schedule property. The counsel also would vehemently contend that Ex.D1 also discloses that property was purchased in the year 1982 i.e., on 01.02.1982 from one Balamaniyamma and hence, the fact that defendant No.1 was in possession of the suit schedule property from the year 1982 and the suit was filed in the year 1983. The Trial Court as well as First Appellate Court committed an error even not granting the relief of declaration that defendant No.1 has perfected her title to the suit schedule property by adverse possession and committed an error in not accepting the documents at Ex.D1 and D2.
15. The learned counsel appearing for respondent No.2 would vehemently contend that sale certificate is issued in favour of Smt. Ammayamma considering the long possession and the property belongs to respondent No.2. Based on the said 16 contention, this Court directed to the counsel for respondent No.2 to produce the documents to show that the suit schedule property belongs to respondent No.2. Accordingly, the counsel for respondent No.2 filed an application under Order 41 Rule 27 of CPC along with the documents before the Court.
16. Having heard the learned counsel appearing for the appellant and the learned counsel for respondent No.2 and also considering the material on record and also in keeping the substantial questions of law framed by this Court, this Court has to analyse the material available on record. All the substantial questions of law are taken up together for the consideration since all are interlinked.
17. The main contention of the appellant's counsel before this Court is that without any title deed pertains to the plaintiff, a relief of declaration and possession has been granted by the Trial Court and the same has been confirmed by the First Appellate Court. The name of the mother of respondent No.1 in the assessment register does not establish the title of the plaintiff over the suit schedule property since the assessment 17 registers are not the documents of title. On the other hand, the appellant produced the document of sale certificated dated 25.05.1988 issued by respondent No.2 but the Trial Court ignored the documents at Ex.D1 and D2 and also failed to consider the possession of the suit schedule property for a period of exceeding 12 years prior to the date of filing of the suit had perfected her title to the suit schedule property by adverse possession.
18. It is important to note that this Court would like to consider the application filed under Order 41 Rule 27(2) of CPC filed by respondent No.2 when this Court directed to produce the documents to show that whether the property belongs to respondent No.2 or not. Hence, respondent No.2 produced the documents. On perusal of the documents it discloses that none of the documents show that the suit schedule property belongs to respondent No.2. The documents which have been produced also stands in the name of the plaintiff as well as one Ibrahim Sab for the year 1975-76, 1981-82 and 1986-87. Only document No.4 shows that the khatha extract for the year 1986- 18 87 entering the name of Ammayamma in the Town Municipal Council and this document is only based on the sale certificate issued in favour of Ammayamma. In order to prove the fact that the suit schedule property belongs to respondent No.2, no such document is placed before the Court. The counsel submits that no document is availabe to show that the suit schedule property belongs to respondent No.2 and only revenue documents are produced and hence, these documents will not helpful to decide the issue involved between the parties. Accordingly, I.A.No.1/2024 filed under Order 41 Rule 27(2) of CPC is liable to be rejected since the same is not in respect of the germane issue involved between the parties. The contention of the appellant that the suit schedule property belongs to respondent No.2 and respondent No.2 had executed the document of sale certificate in terms of Ex.D2. When the documents produced before the Court are not in respect of germane issue involved between the parties, the question of entertaining an application filed under Order 41 Rule 27(2) of CPC does not arise.
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19. The main contention of the counsel for the appellant that documents which have been produced by the plaintiff do not confer any title over the suit schedule property. It is the specific case of the plaintiff that the suit schedule property belongs to her mother and she was the original owner and she got the property through her ancestors and after the death of her mother, the property devolves on her. In order to prove the case of the plaintiff, she relied upon the document at Ex.P2 that is the death certificate of Lakshmamma W/o Subba Rao. The plaintiff also claims that she is the daughter of said Lakshmamma and Subba Rao since the same is also disputed. In order to prove the said fact, she produced the document at Ex.P33 - Transfer Certificate, wherein it is specifically mentioned the name of the plaintiff of the year of admission No.132/1958- 59 and her father's name is mentioned as Subbraya. Hence, both the Courts relied upon this document to comes to the conclusion that the plaintiff is the daughter of Lakshmamma. Hence, I do not find any error committed by the Trial Court in coming to the conclusion that she is the daughter of Lakshmamma and Subba Rao.
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20. Now, coming to the aspect of granting the relief of declaration is concerned, the plaintiff relied upon Ex.P3 i.e., the demand register extract for the year 1979-80 wherein the name of the mother of the plaintiff is available in the records maintained by respondent No.2. It is also important to note that plaintiff relies upon the document at Ex.P4 that is also assessment list of building and lands wherein it clearly discloses that the house is in existence and the same is for the year 1975- 76 and the said document is also in the name of the mother of plaintiff. The plaintiff also relied upon the document at Ex.P5 for the year 1981-82 wherein also the name of the mother of the plaintiff is shown in respect of the house. Hence, it is clear that the house is in existence in the suit schedule property earlier. The plaintiff also relied upon Ex.P6 wherein also the name of the Lakshmamma found in the demand register extract for the year 1982-83. So also produced the documents at 'P' series pertains to respondent No.2 office and description of the suit schedule property also given which stands in the name of the mother of the plaintiff i.e., Ex.P7 to P10.
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21. It is also important to note that respondent No.2 also issued notice at Ex.P11 to the husband of plaintiff on 12.01.1977. The claim of the plaintiff that her mother passed away in the year 1971 and thereafter, she got married one Laxmana who is the husband of the plaintiff within one year of her mother's death and this letter is addressed to the husband of the plaintiff dated 12.01.1977. Ex.P12 to P14 are also issued by respondent No.2 in favour of plaintiff's husband. Ex.P15 to P22 are the tax paid receipts from 1976 to 1983. Encumbrance Certificate is also produced before the Court as Ex.P23 and P24. The plaintiff also produced a rental agreements at Ex.P25 and P26 executed in favour of the respective tenants and also letter was also given to respondent No.2 by the plaintiff on 02.08.1983 at Ex.P27 stating that one Ammayamma is claiming right over the suit schedule property creating the sale deed through one Balamaniyamma and requested not to transfer the same. The plaintiff, in order to establish her right in respect of the suit schedule property, produced several documents particularly the document of assessment register extract. It is also claim of the 22 plaintiff that the suit schedule property belongs to her mother Lakshmamma as the same is the ancestors property and the same is clear from the documents produced by the plaintiff and even though the documents produced by respondent No.2 before this Court also clearly show that the property stands in the name of Lakshmamma who is none other than the mother of the plaintiff.
22. It is also important to note that the name of the mother of the plaintiff is entered in the register maintained by respondent No.2 of the year 1975-76 and only katha is transferred based on the subsequent sale certificate issued by respondent No.2 in the year 1988. The counsel for respondent No.2 also not disputes the fact that respondent No.2 had issued the sale certificate. When this Court directed the counsel for respondent No.2 to produce any documents to show that the suit schedule property belongs to respondent No.2 or not, no such documents are placed before the Court to substantiate the same. Having considered the documents which have been produced by the plaintiff before the Trial Court are the documents prior to the 23 execution of the sale certificate in favour of defendant No.1. It is important to note that sale certificate issued in favour of defendant also during the pendency of the dispute between the parties and the plaintiff also objected for transfer of katha when she comes to know about the sale deed executed by one Balamaniyamma in favour of Ammayamma. It is also the claim of defendant No.1 that she has purchased the property from Balamaniyamma. But the said Balamaniyamma has not been examined before the Trial Court to prove the said contention. Whether the said Balamaniyamma having right in respect of the property also, no document is placed before the Court by defendant No.1. It is important to note that the sale deed was executed in the year 1982 i.e., on 01.02.1982, But all the documents stand in the name of the mother of plaintiff prior to 1982 and hence, the execution of sale deed in favour of Ammayamma/defendant will not create any right in her favour. When the counsel for the appellant contend that there is no title in favour of the plaintiff, at the same time, burden is on the appellant to prove that whether Balamaniyamma had right in respect of the suit schedule property to execute the sale deed, 24 but no such material is placed before the Court to prove the same. On the other hand, the plaintiff had produced voluminous documents before the Trial Court to show that they are paying the tax from the year 1975 onwards and the suit schedule property belongs to her ancestors. All these documents are considered by the Trial Court. When the counsel for the appellant contend that the suit schedule property belongs to respondent No.2, but respondent No.2 has not produced any single document to prove the same. Hence, it is clear that defendant No.1 got created the document of sale certificate in her favour without any document of proof as to title to her vendors.
23. The specific case of the plaintiff that the property was tenanted and tenancy documents are also produced at Ex.P25 and P26. When one portion of the property was fallen, the other tenant also vacated and taking the advantage of the said circumstances, defendant No.1 trespassed into the suit schedule property. Voluminous documents are placed before the Court to show that the plaintiff's mother was the owner of the 25 property and all records stand in her name and subsequent to the death of her mother, the plaintiff, became absolute owner of the suit schedule property and also she has proved that she is the daughter of Lakshmamma by producing the document at Ex.P33 since defendant No.1 denies that she is not the daughter of Lakshmamma. The voluminous documents produced by the plaintiff clearly disclose that the suit schedule property belongs to the ancestors and all the records are stand in the name of the mother of the plaintiff. The assessment register though does not establish the title of the plaintiff over the suit schedule property but the very case of the plaintiff is that the suit schedule property belongs to her ancestors and her mother's name was found in the documents. Under such circumstances, the Court has to take preponderance of probabilities while considering the case on hand. On the other hand, defendant No.1 has created the document at Ex.D1 and D2 from the fictitious persons when said Balamaniyamma was not the owner of the property and respondent No.2 also not the owner of the suit schedule property. When the plaintiff is able to prove the case of preponderance of probabilities, Ex.D1 and D2 will not create any 26 right in favour of defendant No.1. Hence, both the Courts rightly come to the conclusion that plaintiff has made out the case for granting the relief of declaration and possession and not accepted the documents at Ex.D1 and D2. The other substantial question of law is also with regard to the alternative contention of defendant No.1(a) that his mother having been in uninterrupted possession of the suit schedule property for a period of exceeding 12 years prior to the date of filing of the suit had perfected her title by adverse possession. When defendant No.1 claims the right based on the sale deed, she cannot claim the adverse possession. Unless animus is proved and admitted that the plaintiff is the owner of the suit schedule property and she is in possession of the property with the knowledge of the plaintiff, the question of granting the relief of adverse possession also does not arise. Hence, all the substantial questions of law are answered accordingly holding that the appellant fails to prove his case. Such being the case, the judgment and decree of the Trial Court as well as the First Appellate Court requires to be confirmed and the second appeal of the appellant requires to be dismissed.
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24. In view of the discussions made above, I pass the following:
ORDER The regular second appeal is dismissed. Consequently, the judgment and decree dated 06.10.1994 passed in O.S.No.188/1983 by the Trial Court as well as the judgment and decree dated 10.02.2009 passed in R.A.No.60/2007 by the First Appellate Court are confirmed.
Sd/-
JUDGE SN