Karnataka High Court
Prakasha vs B N Anandappa 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.324/2018 (DEC/INJ)
BETWEEN:
1. PRAKASHA
S/O SOMANNA
AGED ABOUT 39 YEARS
2. MANJUNATHA
S/O SOMANNA
AGED ABOUT 37 YEARS
BOTH ARE
R/AT VASAPPA COLONY,
TARIKERE TOWN,
TARIKERE TALUK,
CHIKMAGALUR DISTRICT-577228. ... APPELLANTS
(BY SRI VIRUPAKSHAIAH P.H., ADVOCATE)
AND:
1. B.N.ANANDAPPA
S/O B.N.NAGAPPA
AGED ABOUT 68 YEARS
LINEMAN,
WORKING AT MESCOM
BIRUR, BIRUR HOBLI
KADUR TLAUK
CHIKMAGALUR DISTRICT-577548. ... RESPONDENT
(BY SRI VIKAS M., ADVOCATE)
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THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGEMENT AND DECREE DATED 15.12.2017
PASSED IN R.A.NO.21/2014 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND PRINCIPAL JMFC, TARIKERE, ALLOWING THE
APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE
DATED 06.06.2014 PASSED IN O.S.NO.120/2009 ON THE FILE
OF THE CIVIL JUDGE AND ADDITIONAL JMFC, TARIKERE.
THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 01.07.2024 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellants and learned counsel for the respondent.
2. This second appeal is filed against the divergent finding of the First Appellate Court in R.A.No.21/2014 dated 15.12.2017 on the file of the Senior Civil Judge and Principal J.M.F.C., Tarikere reversing the judgment and decree passed by the Trial Court in O.S.No.120/2009 dated 06.06.2014 on the file of the Civil Judge and Additional J.M.J.C. at Tarikere.
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.
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4. The factual matrix of the case of the plaintiff before the Trial Court is that he has purchased the suit schedule site and Mangalore tiled house from its previous owner Smt. Rajamma and her two sons for valid consideration of Rs.25,000/-. Originally, the suit schedule property belongs to Bettadahalli Mandal Panchayath and the assessment number of the suit schedule property was 119, Janger No.118 and measured 60 x 40 ft. Thereafter, the suit schedule property has come under the control of Municipality and the Municipality has given a new assessment number 6679/119 in respect of the suit schedule property. It is also the contention of the plaintiff that, on the date of registration of the sale deed, he has obtained the possession of the suit schedule property. Since then, he is in lawful possession and enjoyment of the suit schedule property without any disturbance by the defendants and any other persons. It is also the contention of the plaintiff that his vendor Smt. Rajamma has obtained loan from the Government under Janatha Scheme and has constructed a Mangalore tiled house measuring 10 x 10 ft. Further, he has cleared loan to the Government dated 17.07.1993. It is contended that the 4 defendants have no right, title or interest and possession over the suit schedule property and made an attempt to trespass into the suit schedule property and the defendants being powerful persons, colluding with the Secretary of Bettadahalli Mandal Panchayath has obtained fake Assessment Extract and in order to harass him, intentionally trespassed into the suit schedule property and based on the same, claiming the right and illegal activities of the defendants was resisted by him with help of his friends and relatives and without the assistance of this Court, he is unable to prevent the same. Hence, filed the suit.
5. In pursuance of the suit summons, the defendants appeared and filed the written statement and specifically denied the case of the plaintiff and contend that previous owner Rajamma was not having any sites. The plaintiff has created a fake sale deed without having possession from previous owner. It is contended that one Somanna, his wife and children were site less and houseless. Therefore, they constructed a hut in the property bearing No.103 of Bettadahalli Mandal Panchayath. The Bettadahalli Mandal Panchayath recognized their long 5 possession by receiving the prescribed fee and entered their name in the Panchayath document. After the change of administrative jurisdiction, Municipality has also entered their name under Assessment Extract bearing number 103/6645 measuring 25 x 40 ft. Since 10 years, they are in possession and enjoyment of the said property and have constructed a house in 20 x 20 ft. by spending a sum of Rs.2,00,000/-. Further, they have obtained electricity connection to the said house and their parents are residing in the said house. The defendants have also given the boundaries and description of the property which they are in possession and constructed the house and also contend that they have also fenced their property by stone pillars with barbed wire fence. It is contended that the plaintiff is claiming right without possession. Hence, the suit is not maintainable.
6. The Trial Court, based on the pleadings of the parties, formulated the following issues:
"1) Whether the plaintiff proves that, he is the absolute owner to the suit schedule property by virtue of registered sale deed?6
2) Whether the plaintiff further proves that, he is in lawful possession of the suit schedule property as on the date of the filing of the suit?
3) Whether the plaintiff further proves that
defendants made interference to the suit
schedule property?
4) Whether the plaintiff is entitled for relief as
sought for?
5) What order or decree?"
7. The plaintiff, in order to substantiate his case, examined himself as P.W.1 and examined one witness as P.W.2 and got marked the documents as Exs.P1 to P12. On the other hand, the defendants examined 2nd defendant as D.W.1 and examined two witnesses as D.Ws.2 and 3 and got marked the documents as Exs.D1 to D30.
8. The Trial Court, having considered both oral and documentary evidence placed on record, answered all the issues as 'negative', in coming to the conclusion that the plaintiff has not produced any document, except the document of Ex.P1 and Ex.P10 i.e., the sale deed and copy of assessment and also 7 taken note of the documents produced by the defendants and comes to the conclusion that the defendants have not placed any cogent material before the Court in respect of acquisition of property bearing Assessment No.6645/103 measuring 25 x 40 ft.
Therefore, the title of the defendants in respect of the said property is not taken into consideration as it is outside the purview of this suit. It is also an observation that from the averments made in the affidavit filed by way of examination-in- chief of P.W.2, even the father of the 1st defendant was also having a site measuring 25 x 40 ft. bearing Assessment No.103/1. However, the plaintiff has not whispered anything about his father either in the plaint averments or during the course of evidence and also taken note of the fact that P.W.2 during the course of cross-examination has deposed that the plaintiff is residing in the suit schedule property with his wife and children. Further, he has admitted that, he has not seen the title deed issued by Bettadahalli Mandal Panchayath to Rajamma. Further, he has also admitted that, he is not aware of the allotment of site by Bettadahalli Mandal Panchayath to Rajamma and she is the owner of the suit schedule property. It is also an 8 observation that the vendor of the plaintiff is a better person to given evidence regarding the property which they had sold to the plaintiff as per Ex.P1 and plaintiff has not made any attempt to examine his vendor for the reasons best known to him and also not established the possession over the suit schedule property and unless the possession is established, the question of interference does not arise.
9. Being aggrieved by the said judgment and decree passed by the Trial Court, an appeal is filed before the First Appellate Court in R.A.No.21/2014 and the First Appellate Court taking note of the grounds urged in the appeal memo, formulated the point whether the appellant proves that judgment and decree of the Trial Court is erroneous, opposed to law and facts and evidence on record and on reassessing the evidence available on record, comes to the conclusion that the Trial Court has committed an error in coming to the conclusion that the plaintiff has not proved the title, except producing the document of Ex.P1-sale deed dated 12.08.1993 and comes to the conclusion that it clearly discloses that Rajamma and her sons 9 have executed the sale deed and also taken note of boundaries and transfer of property in M.R.No.23/95-96 and also taken note of the documents at Exs.P3 to P9 which shows that the plaintiff has paid the tax of the suit schedule property. The defendants only relied upon the House Tax Register Extract which shows that the defendant No.1 has paid necessary tax to the Municipality for Assessment No.6645/103 and claim of the plaintiff and the defendants are different.
10. The First Appellate Court also made an observation that on perusal of the documents furnished by the defendants, the boundaries and the property of the defendants are different. The plaintiff has produced the sale deed and boundaries also and the same tallies with the plaint and so also with the Assessment Register Extract issued by the Village Panchayath, Bettadahalli. It is observed that evidence of P.W.1 is corroborated by the documentary evidence. On the other hand, the contention of the defendants is that plaintiff has no right, title or interest over the property which the defendants are claiming right and the defendants have also not furnished any material before the 10 Court in respect of acquisition of the property which they are claiming. The First Appellate Court observed that when the plaintiff has furnished the original sale deed and House Tax Register Extract to prove that his vendor was owner of the said property, the previous owner of the property has to challenge the sale deed and the previous owner has not challenged the sale deed and the finding of the Trial Court that vendor has not been examined is not a correct approach when the sale deed itself is produced before the Court.
11. The defendants have also not furnished any documents to show that Panchayath has granted the suit property to the 1st defendant and when there is no claim by the defendants in respect of the suit schedule property and they claim the right in respect of the different property, it is clear that suit schedule property and property given to the father of the 1st defendant are different properties. Hence, the First Appellate Court reversed the findings of the Trial Court and declared that the plaintiff is the absolute owner of the suit schedule property and granted the relief of permanent injunction. Being aggrieved 11 by the judgment and decree of the First Appellate Court, the present second appeal is filed before this Court.
12. The main contention urged by the learned counsel for the appellants/defendants in the second appeal is that the very conclusion arrived by the First Appellate Court that the plaintiff has proved his title and interference by the defendants over the suit schedule property is erroneous and the learned 1st Appellate Judge failed to appreciate that the property claimed by the plaintiff was totally different and distinct to the property owned by the appellant herein. As such, the conclusion arrived at by the learned 1st Appellate Judge is liable to be interfered. It is also contended in the appeal that the Trial Court committed an error in recognizing the sale deed and only based on the sale deed, coming to the conclusion that plaintiff has proved his title over the suit schedule property without examining whether the vendor of the plaintiff was having right over the suit schedule property is erroneous and failed to consider the documents at Exs.D1 to D30 to prove the fact that the appellants had right over the property in question.
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13. Having considered the grounds urged in the appeal, this Court has framed the substantial questions of law vide order dated 05.06.2018 which reads as hereunder:
" (i) Whether the Lower Appellate Court was justified in holding that the plaintiff has proved his title over the suit schedule property only on the basis of the Sale Deed dated 12.08.1993, while the trial Court had held that there was no other documentary evidence to support the title of the plaintiff?
(ii) Whether the Lower Appellate Court was justified in disregarding the documents Exs.D1 to D30 which proved the title of the defendants over the suit schedule property?"
14. Learned counsel for the appellants/defendants in his argument would vehemently contend that suit is filed for the relief of declaration and injunction and the First Appellate Court dismissed the suit on the ground that the plaintiff has failed to prove his title, but the Trial Court committed an error and there is a divergent finding. The very claim of the plaintiff herein is that he purchased the property from one Rajamma and no 13 doubt, sale deed is also relied upon which is marked as Ex.P1, no other documents are produced except the documents at Exs.P2 to P12 which are Tax Assessment List, Self Assessment Tax, copy of assessment and certified copy of plaint in O.S.No.393/2012 and contend that he constructed the house, obtained the electricity connection and is also paying the tax and nothing is placed on record, except the tax paid receipts in respect of the tax paid by the plaintiff. On the other hand, the defendants have produced electricity bills and Ex.D16-Certificate issued by the Chief Officer, Tarikere and suit is filed immediately after 15 days of Self-assessment and though the plaintiff has not proved the possession and title, the First Appellate Court reversed the judgment of the Trial Court and the same is an erroneous approach and failed to consider the documents at Exs.D1 to D30 which proves the possession of the defendants.
15. Per contra, learned counsel for the respondent/plaintiff in his argument would vehemently contend that in the plaint and sale deed, boundaries are furnished in respect of the suit schedule property and property which the 14 defendants claim is different and observation made by the First Appellate Court in Paragraph No.23 of the judgment is erroneous and the reasoning given by the First Appellate Court in Paragraph Nos.23 and 24 is against the material on record. The plaintiff relies upon Ex.P10 i.e., copy of assessment which clearly proves the case of the plaintiff that property is assessed for tax and also paid the tax. The learned counsel would vehemently contend that Ex.D1 which is filed before the Trial Court by the defendants is in respect of property bearing No.6645/103 and plaintiff claim is in respect of property bearing No.6679/119. Learned counsel would vehemently contend that they are two different properties and the plaintiff also proved the boundaries by producing the documents though not produced title of vendor and made out a case for granting the relief of declaration and injunction by producing the documents. Hence, it does not require any interference, since the First Appellate Court reassessed both oral and documentary evidence available on record, particularly relying upon the sale deed. 15
16. In reply to the arguments of the learned counsel for the respondent / plaintiff, learned counsel for the appellants / defendants would vehemently contend that the properties which the plaintiff and the defendants are claiming are not distinct properties as observed by the First Appellate Court and an attempt was made to take possession by the plaintiff, since the document at Exs.D1 to D30 establishes the fact that the possession is with the defendants and even photographs are also produced that the defendants are in possession of the property. Hence, it requires interference of this Court, since the documents at Exs.D1 to D30 are not properly appreciated by the First Appellate Court.
17. Having considered the grounds urged in the second appeal as well as the oral submissions of the respective counsels during the course of arguments and also keeping in view the substantial questions of law framed by this Court, this Court has to re-analyze the material available on record, since there is a divergent finding, including the evidence of both the parties i.e., oral and documentary evidence.
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18. Having considered the submissions of respective counsels and also taking note of the averments of the plaint, it is clear that plaintiff had purchased the property from one Rajamma for a sale consideration of Rs.25,000/- and the said property originally belongs to Bettadahalli Mandal Panchayath and Assessment number of the said property is 119 and Janger number is 118 measuring 60 x 40 ft. It is the claim of the plaintiff that later on, suit property came under the control of Municipality and they have given New Assessment No.6679/119 and from the date of purchase of property, the plaintiff is in possession and contend that construction was made and loan was obtained by the vendor and the same was cleared by the plaintiff. But, the defendants are not having any right in respect of the suit schedule property.
19. This Court would like to extract the schedule of the property mentioned in the suit to which the plaintiff is claiming right which reads as follows:
"SCHEDULE The house and vacant site situated at Galihalli Village, Kasaba Hobli, Tarikere Taluk, Old Asst. 17 No.119, Janjar No.118, and New Number given by the Municipal Authority of Tarikere in Asst. No.6679/119 measuring 60 x 40 bounded by:
East : Road
West : Kere Angala and Halla
North : House of Venkatappa
South : House of Venkateshwara"
20. Per contra, it is the contention of the defendants that the plaintiff has created a fake sale deed without showing the possession of the previous owner and the previous owner was not having any title in respect of the said site. It is contended that one Somanna, his wife and children were site less and houseless and they constructed a hut in the property bearing No.103 of Bettadahalli Mandal Panchayath. The Bettadahali Mandal Panchayath recognized their long possession by receiving the prescribed fee and entered their name in the Panchayath document and the property also came to the jurisdiction of Municipality and Municipality has assigned Assessment No.103/6645 measuring 25 x 40 ft. and they claim that they are in possession from the last 10 years and also constructed a house 20 x 20 ft. by spending a sum of Rs.2,00,000/-. 18
21. This Court also would like to extract the boundaries of the property to which the defendants are claiming right which reads as follows:
"Property bearing Assessment No.103/6645 measuring 25 x 40 ft.
East : Road
West : Government Land and Halla
North : Half constructed house
of Hanumanthamma
South : Property of Venkatappa"
22. Having considered the boundaries mentioned by both the plaintiff and the defendants, the plaintiff and the defendants claim that towards East of their property, there is a road. The plaintiff claims that towards West of his property, there is Kere Angala and Halla and the defendants claim that there is a Government Land and Halla and both the boundaries of the property of the plaintiff and the defendants towards East and West tallies with each. But, the plaintiff claims that towards North of his property, there is property of Venkatappa, but the defendants claim that towards North of their property there is half constructed house of Hanumanthappa. Further, towards 19 South of his property there is house of Venkateshwara and the defendants claim that towards South of their property, there is property of Venkatappa. Hence, the boundaries given by the plaintiff and the defendants in respect of their property i.e., North and South shows that the properties are different properties. It is also important to note that the claim in respect of the plaintiff is in respect of property bearing No.6679/119 and the same tallies with Bettadahalli Mandal Panchayath Assessment No.119 and measurement is 60 x 40 ft. and the defendants claim property bearing No.103 of Bettadahalli Mandal Panchayath and the same was given Assessment No.103/6645 by Municipality.
23. It is also important to note that plaintiff claims that total measurement of his property is 60 x 40 ft. and the defendants' claim is in respect of 25 x 40 ft. and measurement is also different. With regard to the identity of the property, whether both of them are claiming the very same property, there is no material on record. It is important to note that having considered the pleadings of both the parties, both the 20 parties claim original title from Bettadahalli Mandal Panchayath. But, both the plaintiff and the defendants have not produced any documents to prove the fact that the said property was allotted by Bettadahalli Mandal Panchayath in favour of the vendor of the plaintiff. It is also the claim of the defendants that one Somanna, his wife and children were site less and houseless and they constructed a hut in the property and their possession was recognized by receiving prescribed fee and the Municipality entered their name in the Panchayath document and both the plaintiff and the defendants claim that their name is entered in the Panchayath document and there is no basis for entering their name in the Panchayath document.
24. Apart from that, with regard to the allotment of the property in favour of either the plaintiff or the defendants, no material is placed before the Court. The plaintiff claims title on the basis of the title deed executed by one Rajamma and plaintiff admits that he is not aware of title of vendor of Rajamma and no title deed of Rajamma is placed before the Court. Hence, either there must be allotment of property by the 21 Mandal Panchayath in favour of Rajamma and also in favour of the defendants and both the parties rely upon the document of Ex.P10 i.e., the copy of assessment issued by the Municipality and the property came to the Municipality from the Bettadahalli Mandal Panchayath. The defendants also rely upon the copy of assessment at Ex.D1 and the defendants also not produced any title deed. Further, the plaintiff has not made either the Bettadahalli Mandal Panchayath or the Municipality as party to the proceedings and it is the claim that property originally belongs to Municipality and the same comes within the purview of the Municipality and hence, the plaintiff ought to have made them as party to the proceedings, but not made them as party.
25. It is also important to note that entries are made in Bettadahalli Mandal Panchayath and with regard to what is the basis for entries in the Mandal Panchayath of Bettadahalli and also Municipality records, nothing is on record. First of all, the assessment is also in respect of different properties and I have already pointed out that boundaries mentioned by the plaintiff and the defendants are different in respect of North and South 22 and measurement is also different. First it has to be identified whether boundaries shown by the plaintiff and the defendants in respect of North and South of their property are one and the same and is there any other property. Having taken note of the boundaries and also mentioning of different assessment claimed by the defendants and the plaintiff, the First Appellate Court comes to the conclusion that both are different properties and mere mention of different property assessment number is not a ground to come to a conclusion that it is a different property.
26. No doubt, the defendants also produced Exs.D1 to D30 and mere production of number of documents is not enough and possession has to be proved and for establishing the possession, there must be documents and no such document is placed before the Court. When such materials are not found, it is a fit case to remand the matter for identification of the property claimed by the plaintiff and the defendants. It is also appropriate to make the Mandal Panchayath and Municipality as parties to the proceedings and even if they are not made as parties to the proceedings, the parties ought to have summoned 23 the officials from the Bettadahalli Mandal Panchayath and Municipality to verify as to what is the basis for entering the names of plaintiff and the defendants in the Panchayath documents without ascertaining the title of the parties. The plaintiff also not established the title of the vendor of the plaintiff, since the plaintiff is claiming the relief of declaration and permanent injunction. Hence, the property has to be identified and then, the Court has to take note of the title of the parties which they claim. Therefore, it is appropriate to remand the matter for consideration afresh and hence, I answer the substantial questions of law accordingly.
27. In view of the discussion made above, I pass the following:
ORDER
(i) The regular second appeal is allowed.
(ii) The judgment and decree passed by the First
Appellate Court in R.A.No.21/2014 dated
15.12.2017 reversing the judgment and
decree passed by the Trial Court in
O.S.No.120/2009 dated 06.06.2014,
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are hereby set aside and matter is remanded
to the Trial Court for consideration afresh in the light of the observations made hereinabove.
(iii) The parties and their respective counsels are directed to appear before the Trial Court on 05.08.2024. Since, the suit is of the year 2009 and the same is almost 15 years old, it is appropriate to dispose of the same within six months from 05.08.2024.
(iv) The parties are directed to appear before the Trial Court without expecting any notice from the Trial Court. The respective counsels are also directed to assist the Trial Court in disposal of the case as stipulated.
(v) The Registry is directed to send the records
to the Trial Court forthwith, to enable the
Trial Court to take up the matter on
05.08.2024.
Sd/-
JUDGE
ST