Karnataka High Court
Sri Ninge Gowda S/O Hotte Anka vs Sri Anke Gowda S/O Sri Kempe Gowda @ Molle ... on 13 March, 2013
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 13TH DAY OF MARCH 2013
BEFORE
THE HON'BLE MR.JUSTICE H.BILLAPPA
REGULAR SECOND APPEAL No.2343/2005
Between:
Sri.Ninge Gowda,
Son of Hotte Anka,
Aged about 55 years,
Residing at Mothahalli,
Kothathi Hobli,
Mandya Taluk - 571 401. ...Appellant
(By Sri.M.S.Purushothama Rao, Adv.,)
AND:
1. Sri.Anke Gowda,
Aged about 56 years.
2. Sri.Kempe Gowda,
Aged about 54 years.
3. Sri.Ninge Gowda,
Aged about 50 years.
Nos.1 to 3 are sons of
Sri.Kempe Gowda @
Molle Gowda,
All are majors and residing
At Mothahalli,
Kothathi Hobli,
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Mandya Taluk - 571 401. ...Respondents
(By Sri.S.Subramanya, Adv., for
M/s.Uparna Assts., for R-1 to 3)
******
This R.S.A. is filed under section 100 of CPC against the
judgment and decree dated 5.09.2005 passed in
R.A.No.40/2000 on the file of the Addl. Civil Judge (Sr.Dn)
Srirangapatna allowing the appeal and setting aside the
judgment and decree dated 13.04.2000 passed in
O.S.No.164/1996 on the file of the Civil Judge (Jr.Dn)
Srirangapatna.
This appeal coming on for orders this day, the Court
delivered the following:-
JUDGMENT
This appeal by the defendant is directed against the judgment and decree, dated 5.9.2005, passed by the Addl. Civil Judge (Sr.Dn.), Srirangapatna, in R.A.No.40/2000 reversing the judgment and decree passed by the trial court in O.S.No.164/96.
2. By the judgment and decree dated 13.4.2000, the trial court has dismissed the suit of the plaintiffs holding that the plaintiffs have failed to prove that the suit schedule property is ancestral property and it has fallen to the share of -3- Thaleboregowda and the plaintiffs are the owners of the suit schedule property. Aggrieved by that, the plaintiffs have preferred an appeal before the Addl. Civil Judge (Sr.Dn.), Srirangapatna, in R.A.No.40/2000. The appellate court by its judgment and decree dated 5.9.2005 has reversed the judgment and decree passed by the trial court in O.S.No.164/96 and has decreed the suit of the plaintiffs declaring that the plaintiffs are the owners of the suit schedule property and directing the appellant-defendant to deliver possession.
3. Aggrieved by that, the appellant-defendant has filed this second appeal.
4. Briefly stated the facts are:
The respondents-plaintiffs filed suit in O.S.No.164/96 for declaration and possession. The case of the respondents- plaintiffs was that the suit schedule property bearing Sy.No.684/5 measuring 25 guntas situated at Gamanahalli village, Srirangapatna Taluk is the ancestral property. The original kathedar was Kudiki Ninga. He had three sons -4- namely, Ankegowda, Thaleboregwda and Hotte Ankegowda. They divided the property long back. Sy.No.684 has been divided into six portions i.e., Sy.Nos.684/1 to 684/6. Sy.Nos.684/2 and 684/6 have fallen to the share of first son Ankegowda, Sy.Nos.684/3 and 684/5 have fallen to the share of 2nd son Thaleboregwoda and Sy.Nos.684/1 and 684/4 have fallen to the share of 3rd son Hotte Ankegowda. Katha of Sy.No.684/5 was transferred in the name of Thaleboregowda, the grand father of the plaintiffs. He enjoyed the suit schedule property. After the death of Thaleboregowda, his son Kempegowda @ Mollegowda was in possession and enjoyment of the suit schedule property. After the death of Kempegowda @ Mollegowda, the plaintiffs are in joint possession and enjoyment of Sy.No.684/5.
5. The defendant proclaimed that katha of the suit schedule property has been transferred in his name during the first week of December 1994 vide MR.No.47/86-87. The defendant forcibly dispossessed the plaintiffs from the suit schedule property on the strength of illegal mutation. The -5- plaintiffs preferred an appeal before the Asst. Commissioner, Pandavapura in R.Mis.No.94/94-95. The appeal came to be dismissed. Thereafter, the plaintiffs filed suit for declaration and possession.
6. The appellant-defendant resisted the suit contending that the suit schedule property including some other properties fell to the share of Ankegowda (Hotte Anka), the father of the defendant. After the death of defendant's father, Siddamma, the mother of the defendant was in possession and enjoyment of the suit schedule property. After the death of Siddamma, the defendant inherited the property and he is in possession and enjoyment of the suit schedule property. Katha has been transferred in his name. RTC entries stand in the name of defendant since 1986 and he has paid the tax. It is denied that Thaleboregowda or his son were in possession and enjoyment of the suit schedule property. It is also denied that mutation was effected illegally. Therefore, the defendant has prayed for dismissal of the suit. -6-
7. The trial court on appreciation of the evidence on record has held that the plaintiffs have failed to prove that the suit schedule property is the ancestral property and the plaintiffs are in possession and enjoyment of the suit schedule property and consequently, has dismissed the suit. In the appeal, the appellate court holding that the plaintiffs are the owners of the suit schedule property and the defendant has no right, title or interest in the suit schedule property and the suit schedule property has not fallen to the share of defendant's father has reversed the judgment and decree passed by the trial court in O.S.No.164/96 and has decreed the suit declaring that the plaintiffs are the owners of the suit schedule property and directing the appellant to deliver possession to the plaintiffs.
8. Aggrieved by that, the appellant-defendant has filed this second appeal.
9. At the time of admission, this court has formulated the following substantial questions of law for consideration: -7-
1. Whether the findings of the first appellate court reversing the judgment and decree passed by the Trial Court and decreeing the suit of the plaintiff is perverse and arbitrary, being contrary to law and material on record and the reasons assigned by the Trial Court in dismissing the suit of the plaintiff?
2. Whether the findings of the first appellate court decreeing the suit of the plaintiff for possession on the basis that the plaintiff was dispossessed in the year 1994 is perverse and arbitrary having regard to the material on record which shows that the defendants were in possession prior to 1993-94?
10. The learned counsel for the appellant contended that the impugned judgment and decree passed by the appellate court cannot be sustained in law. He also submitted that the appellate court has erred in reversing the judgment and decree passed by the trial court. He also submitted that right from 1968-69 till 1999-2000 the RTC entries stand in the name of Siddamma and the defendant. Mutation has been effected in the year 1986-87 and the -8- appeal has been dismissed by the Asst. Commissioner. The appellant is in possession and enjoyment of the suit schedule property. The respondents have not proved that they were in possession and they were dispossessed during the year 1994. The records show that the defendant and his mother were in possession and enjoyment of the suit schedule property. He also submitted that the appellate court has failed to consider the evidence on record in proper perspective and ignoring the RTC entries and mutation effected in the name of the defendant, the appellate court has reversed the judgment and decree passed by the Trial Court which is totally incorrect. He therefore submitted that the judgment and decree passed by the appellate court cannot be sustained in law.
11. As against this, the learned counsel for the respondents submitted that the appellate court on proper consideration of the material on record has rightly reversed the judgment and decree passed by the trial court and decreed the suit. Further he submitted that the suit is for declaration and possession. Exhibits P2 and P3 i.e. index of -9- land and record of rights clearly show that Sy.No.684/5 has fallen to the share of Thaleboregowda, the grand father of the plaintiffs. Column No.9, right from 1968-1969 has continued in the name of Thaleboregowda till 1986-87. It is only in the year 1986-87 mutation has been effected in the name of the defendant. Exhibits P2 and P3 clearly show that the suit schedule property has fallen to the share of Thaleboregowda, the grand father of the plaintiffs. Merely because the entries in column 12 of RTC show the name of defendant and his mother, it does not mean they are the owners of the suit schedule property. The claim of the defendant that the suit schedule property has fallen to the share of his father is totally incorrect. The defendant has not claimed adverse possession. Under Article 65 of the Limitation Act, the period of limitation to recover possession based on title is 12 years. In the present case, the defendant has not set up adverse possession. On the other hand, the defendant claims title based on partition and has failed to show that the suit schedule property has fallen to the share of his father. He also submitted that the appellate court on proper consideration of
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the material on record has rightly reversed the judgment and decree passed by the Trial Court. The Trial Court has failed to consider Exs.P3, P4 and RTC entries in proper perspective. Therefore, the impugned judgment and decree passed by the appellate court does not call for interference. He placed reliance on the decision of the Hon'ble Supreme Court reported in (2004) I SCC page.271.
12. I have carefully considered the submissions made by the learned counsel for the parties.
13. The questions of law raised consideration are interlinked and therefore, they are considered together.
14. The respondents-plaintiffs claim that the suit schedule property is the ancestral property. It fell to the share of Thaleboregowda, the grand father of the plaintiffs. After the death of Thaleboregowda, his son Kempegowda @ Mollegowda was in possession and enjoyment of the suit schedule property. Thereafter, the respondents-plaintiffs are in possession and enjoyment of the suit schedule property.
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During the year 1994, the appellant proclaimed that mutation has been effected in his name and dispossessed the plaintiffs.
15. The appellant-defendant has contended that the suit schedule property fell to the share of his father Anke Gowda (Hotte Anka). After the death of his father, his mother Siddamma continued in possession and enjoyment of the suit schedule property. Thereafter, the defendant continued in possession and enjoyment of the suit schedule property and mutation has been effected in his name. It is also contended that RTC entries right from 1986 are in the name of the defendant.
16. The Trial Court holding that the respondents- plaintiffs have failed to prove that the suit schedule property is their ancestral property and it fell to the share of Thaleboregowda, has dismissed the suit. The appellate court has reversed the judgment and decree passed by the Trial Court holding that the plaintiffs are the owners of the suit schedule property and it was allotted to the share of Thaleboregowda, the grand father of the plaintiffs.
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17. Exhibits P2 and P3 are index of land and record of rights. Exhibits P2 and P3 show that Sy.No.684 has been divided into six portions. Sy.Nos.684/1 and 684/4 have been allotted to the share of Hotte Anka, the father of the defendant. Sy.No.684/5 has been allotted to the share of Thaleboregowda, the grand father of the plaintiffs. Except exhibits P2 and P3, there are no other documents regarding partition. Exs.P2 and P3 clearly show that the suit schedule property has been allotted to the share of Thaleboregowda, the grand father of the plaintiffs. Exs.P4 and P6 and Exs.D1 to D6 are the RTC extracts in respect of Sy.No.684/5. In column No.9, the name of Thaleboregowda has been continued till 1986-87. Thereafter, the name of the appellant has been entered in column No.9. Ex.P7 is the mutation extract. It shows mutation has been effected in the name of the appellant in respect of Sy.Nos.684/5, 684/1 and 684/4. There is no basis for this. Exs.P2 and P3 show that Sy.No.684/5 has been allotted to the share of Thaleboregowda. In column No.9, the name of
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Thaleboregowda is shown till 1986-87. Thereafter, without any basis mutation has been effected in the name of the appellant in respect of Sy.No.684/5. There is nothing on record to show that Sy.No.684/5 was allotted to the share of appellant's father. Therefore, the mutation in respect of Sy.No.684/5 in favour of the appellant is without any basis. After coming to know about this, the respondents have questioned it before the Asst. Commissioner in R.Mis.No.94/94-95. The appeal has been dismissed. No doubt, the RTC entries right from 1968-69 till 1999-2000 are in the name of Siddamma and the appellant in column No.12. The appellant has not claimed adverse possession. He claims that the suit schedule property was allotted to the share his father Anke Gowda (Hotte Anka). Exhibits P2 and P3 show that the suit schedule property has been allotted to the share of Thaleboregowda, the grand father of the plaintiffs. Sy.Nos.684/1 and 684/4 have been allotted to the share of Hotte Anka, the father of the defendant. Merely because the entries show the name of appellant and his mother in column No.12, it does not mean they can claim title to the property.
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Article 65 of the Limitation Act provides that the limitation to recover possession of immoveable property based on title is 12 years and it starts when the possession of the defendant becomes adverse to the plaintiff.
18. In the present case, the appellant has not set up adverse possession. On the other hand, the appellant claims that the suit schedule property fell to the share of his father. The appellant has failed to show that the suit schedule property fell to the share of his father. The evidence on record shows that the suit schedule property was allotted to the share of Thaleboregowda, the grand father of the plaintiffs. Therefore, the plaintiffs can recover possession. Merely because the entries in the RTC show the name of defendant and his mother, it does not mean they can claim title to the property. The plaintiffs have shown that the suit schedule property was allotted to the share of their grand father and they are entitled for it. Therefore, they can recover possession from the defendant. Therefore, the appellate court was justified in reversing the judgment and decree passed by the
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Trial Court and decreeing the suit. The findings are not perverse and they are justified in law. The questions of law raised for consideration are answered accordingly.
There is no merit in this appeal and therefore, it is liable to be dismissed.
Accordingly, the appeal is dismissed.
Sd/-
JUDGE.
Dvr: