Karnataka High Court
Sri C Anandagowda vs Smt Nagalakshmi on 2 July, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:25109
RSA No. 1912 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 1912 OF 2023 (INJ)
BETWEEN:
1. SRI C. ANANDAGOWDA
S/O LATE C. CHOWDAPPA,
AGED ABOUT 30 YEARS,
R/O BADAVANAHALLI,
DODDERI HOBLI,
MADHUGIRI TALUK-572112
TUMAKURU DISTRICT.
...APPELLANT
(BY SRI. V B SIDDARAMAIAH.,ADVOCATE)
AND:
1. SMT. NAGALAKSHMI
Digitally signed W/O RANGANATHA,
by DEVIKA M AGED ABOUT 35 YEARS,
Location: HIGH
COURT OF 2.
KARNATAKA SRI. B.R. RAMAKRISHNA
S/O LATE SHANBHOG RANGAPPA,
AGED ABOUT 68 YEARS,
THE RESPONDENTS ARE
R/O BADAVANAHALLI,
DODDERI HOBLI,
MADHUGIRI TALUK,
TUMAKURU DISTRICT--572112
3. SMT. C. ANUPAMA
W/O MUTTAIAH,
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NC: 2024:KHC:25109
RSA No. 1912 of 2023
AGED ABOUT 31 YEARS,
R/AT PIPELINE ROAD,
BAAVESHWARANAGARA,
KANAKAPURA TOWN-562109
RAMANAGARA DISTRICT.
...RESPONDENTS
(BY SRI KASHYAP N. NAIK, ADVOCATE FOR C/R1 AND R2)
THIS RSA IS FILED SECTION 100 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 23.08.2023.PASSED IN
R.A.NO.54/2017 ON THE FILE OF ADDITIONAL SENIOR CIVIL
JUDGE AND JMFC, MADHUGIRI, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 23.03.2017
PASSED IN O.S.NO.310/2012 ON THE FILE OF PRINCIPAL CIVIL
JUDGE AND JMFC, MADHUGIRI
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This matter is listed for admission. Heard the learned counsel for the appellant and the learned counsel for the respondents.
2. The factual matrix of case of the plaintiff in O.S.No.310/2012 that the suit Sy.No.5/4 totally measuring 2 acre 10 guntas. It was originally belongs to one Chennaiah Lakshmana and Chennarayappa. One Nagamma and her minor son Rangappa purchased 1 acre -3- NC: 2024:KHC:25109 RSA No. 1912 of 2023 5 guntas out of 2 acre 10 gunta under registered sale deed dated 19.12.1962. Thereafter, one Chowdaiah purchased 1 acre 5 guntas under registered sale deed dated 28.02.1982 from Nagamma and Rangappa. Then the said Chowdaiah converted the land measuring 1 acre 5 guntas in Sy.No.5/4. In the year 1979 and 1983 Chowdaiah sold sites to the third parties and they are residing therein. It is also contended that after conversion, the eastern portion of 1 acre assigned as Sy.No.5/4A3 middle portion assigned as Sy.No.5/2A3 and its most western side measuring 5 guntas assigned and re-numbered as Sy.No.5/4A1 by the concerned survey authorities under Haddu basth phodi durasthi work. As such in the year 1993 this Sy.No.5/4A1 and Sy.No.5/4A3 lands are amalgamated to total extent of 1 acre 5 guntas. The defendant No.2 preferred an appeal against the said survey work before D.D.L.R, Tumakuru which is pending.
3. It is also contended that the husband of the plaintiff No.1 and father of the plaintiff No.2 was in possession and enjoyment of the suit properties. After his -4- NC: 2024:KHC:25109 RSA No. 1912 of 2023 demise, they are in possession of the suit properties by changing revenue records in their names and out of the said total extent of 30 x 100 feet in the suit item No.2 the said Chowdappa has gifted the northern side measuring 30 x 100 feet to his sister Smt.Chowdamma under registered Gift deed dated 17.05.1995 by retaining item No.2 towards southern side. In this regard suit between C.Chowdappa and his vendors in O.S.No.304/1995 is pending before this Court.
4. It is also contended that the father of the defendant No.2 B.Rangappa was the owner of the land situated on the western side of the suit schedule properties and after his death, defendant No.2 has got created a layout plan up to the western side of the Badavanahalli Annappa Nayakanahalli road by cropping the suit item No.2 in order to knock off the property of plaintiffs. The defendants illegally collusion with the concerned panchayat created some documents without knowledge and notice of C.Chowdappa. The defendant No.2 has sold site No.4 in the said layout plan to the -5- NC: 2024:KHC:25109 RSA No. 1912 of 2023 defendant No.1 illegally and thereby defendant No.2 has trying to alienate the site Nos.1 to 3 illegally to third person. Even during the lifetime of C.Chowdappa and after his demise present plaintiffs have given objections to the concerned panchayat authorities for their said illegal acts but panchayat has not taken any action against the illegal acts of the defendants. On the basis of illegal records defendants are trying to interfere with the plaintiffs peaceful possession and enjoyment of the suit property.
5. In pursuance of the suit summons, the defendant No.1 has appeared and filed written statement contending that plaintiffs are claiming falsely to an extent of East-West: 30 feet and North-South:10 feet within the boundaries mentioned in the suit schedule property and whatever the property mentioned in the western side the land of B.Rangappa is not correct because there is no space for the plaintiffs in between the Kanapanayakanahalli road the land of B.Rangappa and as detailed in the written statement filed by the defendant No.2. The land of D.Rangappa extend up to said K.P.Halli -6- NC: 2024:KHC:25109 RSA No. 1912 of 2023 road and on its eastern side this defendant has purchased as site No.4 formed in Sy.No.6/a/a/a by its previous owner D.V.Krishnamurthy the brother of the said B.Rangappa and they were enjoyed that the property up to that road towards east. On conversion they formed a layout and this defendant purchased one site bearing khata No.1228/6/a/a/a from Sri.B.R.Ramakirhsna who is the son of B.Rangappa who acquired the said property by means of a registered partition. From the date of purchase this defendant is in possession and enjoyment of the suit property up to K.P halli road. He constructed residential house much earlier to the date of suit on the said site facing to the main road i.e., towards K.P.Halli road. This defendant adopted the remaining fact contended by the defendant No.2.
6. The defendant No.2 has filed written statement by contending that there was a partition by means of registered partition deed dated 20.11.1962 between B.Narayan Rao and his son, B.Rangappa and B.V.Krishnamurthy who are the sons of B.Venkatappa. -7-
NC: 2024:KHC:25109 RSA No. 1912 of 2023 According to partition, the land bearing Sy.No.6 also the subject matter of the partition. Then there was a registered partition on 17.10.1966 amongst B.Rangappa the defendants father and D.V.Krishnamurthy in respect of Sy.No.6. The land bearing Sy.No.6 was given to the share of B.Krishnamurthy. Later both D.V.Krishnamurthy and B.N.Rangappa S/o B.Narayana Rao have jointly applied for conversion of their land in Sy.No.6 vide ANL.Cr.33/ 1996 -97, dated 30.05.1997 and got converted their land for non-agricultural purpose. Thereafter, layout plan was prepared and same has approved by competent authority.
7. It is also contended that the document shows that enjoyment of land Sy.No.6 up to K.P.Halli road on its eastern side of the family of this defendant. Thus plaintiffs or Chowdappa or their vendors never in possession and enjoyment of any piece of land towards west of the K.P.Halli at any point of time.
8. The Trial Court having considered the pleadings of the parties, framed the issues and allowed the parties to lead evidence. The Trial Court granted the relief -8- NC: 2024:KHC:25109 RSA No. 1912 of 2023 in respect of item No.1 and in respect of item No.2 is concerned, the Trial Court comes to the conclusion that possession has not been proved and dismissed the suit in respect of item No.2. The plaintiff has also filed an appeal in R.A.No.54/2017.
9. Being aggrieved by the dismissal of suit in respect of item No.2 is concerned, an appeal is filed in R.A.No.54/2017 before the First Appellate Court. The First Appellate Court having considered the grounds urged in the appeal memo, formulated the point whether the appellant made out the ground to permit to produce the additional documents and whether the Trial Court was justified in holding that plaintiff failed to prove the lawful possession as on the date of filing of the suit and whether it requires interference of this Court. The First Appellate Court comes to the conclusion that considering overall evidence of plaintiffs and defendant it clearly goes to show that plaintiff fails to substantiate the boundaries of the suit item No.2 by placing cogent evidence and also plaintiff fail to prove the actual possession of the suit item of the -9- NC: 2024:KHC:25109 RSA No. 1912 of 2023 property as stated in the plaint and answered the point as affirmative in coming to the conclusion that the Trial Court rightly dismissed the suit.
10. Being aggrieved by the said finding, the appellant in his argument vehemently contend that the Trial Court fail to take note of topography of the item No.2 of the suit schedule property and there was a gift deed in favour of his sister in terms of Ex.P23 and remaining extent only to the extent of 5 guntas as per Ex.P13 and the same is not taken note of by the Trial Court as well as the First Appellate Court. The counsel also would vehemently contend that even boundary also tallies with the document of Ex.P2 which came into existence in the year 1984 subsequent to the earlier sale deed of the year 1982 Ex.P1, wherein also the boundary is mentioned as the property of the purchaser. These are the aspects which have not been considered.
11. Per Contra, the counsel appearing for the respondent would vehemently contend that no doubt they have purchased the property to an extent of 1 acre 5
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NC: 2024:KHC:25109 RSA No. 1912 of 2023 guntas, but survey was conducted and after surveying the land only available to an extent of 1 acre and 5 guntas was not there in the actual existence. The counsel brought to notice of this Court document Ex.D44, Ex.D45 and Ex.D46 wherein also after the measurement found only 1 acre of land. There was a reference in the document of Ex.D44, Ex.D45 and Ex.D46 and only having 1 acre of land.
12. It is also important to note that the description mentioned in respect of item No.2 is concerned as land bearing Sy.No.5/4A1 totally measuring 5 guntas which was converted into vacant site and boundaries are also given. When the document of Ex.D44, Ex.D45 and Ex.D46 clearly discloses that the land available only to the extent of 1 acre and not 1 acre 5 guntas. Those documents are also produced before the Court and both the Trial Court as well as the First Appellate Court taken note of extent of land. Having consider Ex.P43, no doubt an attempt is made to alienate the property to an extent of 1 acre 5 guntas, but available only to an extent of 1 acre i.e., also
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NC: 2024:KHC:25109 RSA No. 1912 of 2023 found in document Ex.D43 and so also in Ex.D44 which is very clear that in respect of 1 acre instead of 1 acre 5 guntas and Ex.D45 also discloses that amendment is made to an extent of 1 acre and not 1 acre 5 guntas. Having considered all these documents, it is very clear that the existence of the property only to an extent of 1 acre even Ex.D46 also is very clear that Nagamma is in possession of the property to an extent of 1 acre and not to an extent of 1 acre 5 guntas. When such being the case, both the Trial Court as well as the First Appellate Court taking into consideration of material available on record, particularly documentary evidence comes to the conclusion that property is available only total to an extent of 1 acre and in respect of item No.2 is concerned, existence of property has not been proved. When such finding is given by the Trial Court as well as the First Appellate Court considering the material on record. I do not find any ground to admit and frame any substantial question of law while granting the relief of permanent injunction plaintiff must prove the boundary as well as the existence of the property and
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NC: 2024:KHC:25109 RSA No. 1912 of 2023 when the documents of Ex.D43 and Ex.D46 is very clear that the property available is only to an extent of 1 acre and not 5 guntas is concerned and relief is also only for the relief of 5 guntas of land as item No.2. Hence, I do not find any force in the contention of the appellant's counsel.
13. In view of the discussions made above, I pass the following:
ORDER
i) The Second Appeal is dismissed.
ii) In view of dismissal of the appeal, I.As., if any do not survive for consideration, the same stands disposed of.
Sd/-
JUDGE RHS List No.: 1 Sl No.: 82