Karnataka High Court
Sri Narayanappa vs Sri Lingappa on 26 July, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:29553
RSA No. 1344 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.1344 OF 2018
BETWEEN:
1. SRI NARAYANAPPA
S/O. RAMANA BADIGER,
DEAD BY LRS.
1(a) SMT JAYAMMA,
W/O NARAYANAPPA,
AGED ABOUT 69 YEARS,
R/O ANAVATTI VILLAGE, HOBLI,
SORABA TALUK,
SHIVAMOGGA DISTRICT-577 429.
1(b) SRI MANJAPPA
S/O. NARAYANAPPA,
AGED ABOUT 39 YEARS
Digitally signed R/O ANAVATTI VILLAGE, HOBLI,
by DEVIKA M
Location: HIGH
SORABA TALUK,
COURT OF SHIVAMOGGA DISTRICT-577 429.
KARNATAKA
1(c) SMT YASHODA
W/O KRISHNAPPA,
AGED ABOUT 41 YEARS
R/O SAIDURU VILLAGE,
SAGAR TALUK,
SHIMOGGA DISTRICT-577 429.
2. SRI KRISHNAPPA
S/O RAMANA BADIGER,
AGED ABOUT 78 YEARS
R/O HANGAL-ANAVATTI ROAD,
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NC: 2024:KHC:29553
RSA No. 1344 of 2018
SORAB TALUK,
SHIMOGGA DISTRICT-577 429.
...APPELLANTS
(BY SRI. VEERENDRA R. PATIL, ADVOCATE)
AND:
1. SRI LINGAPPA
S/O PARAMAPPA,
AGED ABOUT 88 YEARS
2. SRI D. CHANNAPPA
S/O PARAMAPPA,
AGED ABOUT 77 YEARS
BOTH ARE RESIDING AT
SAMANAVALLI VILLAGE,
ANAVATTI HOBLI,
SORABA TALUK,
SHIMOGGA DISTRICT-577 429.
...RESPONDENTS
(BY SRI K. SREEDHAR, ADVOCATE FOR R1 & R2)
THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE
JUDGEMENT AND DECREE DTD: 01.01.2018 PASSED IN
R.A.NO.30/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND JMFC, SORABA, ALLOWING THE APPEAL AND SETTING
ASIDE THE JUDGEMENT AND DECREE DTD: 18.04.2016
PASSED IN O.S.NO.24/2000 ON THE FILE OF THE CIVIL JUDE
AND JMFC., SORABA.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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NC: 2024:KHC:29553
RSA No. 1344 of 2018
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
ORAL JUDGMENT
Heard the learned counsel for the appellants and the learned counsel for the respondents.
2. The factual matrix of the case of the plaintiffs before the Trial Court is that they filed a suit seeking the relief of possession against the defendants claiming that they are the absolute owners of the property and the defendants are the tenants. It is the contention that from 1995 to 1999, the appellants herein are in arrears of rent at the rate of Rs.30/- per month and the tenancy was terminated on 16.02.1999. The defendants filed the statement that they had purchased the suit schedule property on 08.08.1992 from Basavanthappa. Hence, the Trial Court allowed the parties to lead the evidence. The defendants also took the contention that they have perfected the title by way of adverse possession, since the plaintiffs had lost their right over the suit schedule property. The Trial Court having considered both oral and documentary evidence placed on record, answered point Nos.1 and 2 in the negative and answered point No.3 as does not survive of consideration and answered -4- NC: 2024:KHC:29553 RSA No. 1344 of 2018 issue Nos.4, 5 and 6 in the negative and even not accepted the contention of the defendants for having purchased the suit schedule property from Basavanthappa and dismissed the suit. The same was challenged before the First Appellate Court and the First Appellate Court remanded the matter and thereafter two additional issues are framed by the Trial Court. The Trial Court comes to the conclusion that the defendants have perfected their title by way of adverse possession by answering additional issue No.1 and the suit is barred by limitation by answering additional issue No.2. The Trial Court after the remand also dismissed the suit in coming to the conclusion that the appellants have perfected their title by way of adverse possession.
3. Being aggrieved by the dismissal of the suit, an appeal is filed by the plaintiffs before the First Appellate Court in R.A.No.30/2016. The First Appellate Court on re- appreciation of both oral and documentary evidence placed on record and keeping in view the contentions urged in the appeal, formulated the points for consideration whether the Trial Court was justified in holding that the plaintiffs failed to prove that they were the owners and the defendants were -5- NC: 2024:KHC:29553 RSA No. 1344 of 2018 tenants under them in respect of the suit schedule property. Whether the Trial Court was justified in holding that the suit was barred by limitation and the plaintiffs lost their right over the suit schedule property under law of adverse possession. Whether the Trial Court was justified in holding that the plaintiffs were not entitled for recovery of possession, arrears of rent and mesne profits and whether the impugned judgment and decree is perverse, capricious and calls for interference of this Court. The First Appellate Court answered point Nos.1 to 3 in the negative and answered the additional issue that the defendants have perfected their title by way of adverse possession and the suit is also not barred by limitation and allowed the appeal and directed the defendants to vacate the premises and to pay the rent at the rate of Rs.30/- per month.
4. Being aggrieved by the divergent finding, this present second appeal is filed before this Court.
5. This Court having considered the grounds urged in the appeal, vide order dated 25.08.2021, framed the substantial question of law whether the First Appellate Court is justified in interfering with issue No.1 in O.S.No.24.2000? -6-
NC: 2024:KHC:29553 RSA No. 1344 of 2018
6. The learned counsel for the appellants would vehemently contend that the suit schedule property is purchased by one Basavanthappa, who is the brother of the plaintiffs' father. The learned counsel contend that when the property was purchased in the year 1982, the First Appellate Court cannot come to the conclusion that the sale deed is not valid. The learned counsel contend that in the absence of any tenancy receipts, the First Appellate Court ought not to have reversed the finding of the Trial Court. The very judgment and decree of the First Appellate Court is erroneous. The learned counsel contend that fixing of rent at the rate of Rs.30/- is erroneous without conducting any enquiry and mesne profits ought to have been decided after the enquiry. Hence, it requires interference of this Court.
7. Per contra, the learned counsel for the respondents would contend that it is not in dispute that the father of the appellants is a tenant under the father of the respondents herein. There is no dispute with regard to the fact that partition was taken place among the brothers and in terms of Ex.P.1 partition deed, eastern portion was allotted in favour of the father of the plaintiffs, middle portion was -7- NC: 2024:KHC:29553 RSA No. 1344 of 2018 allotted in favour of Basavanthappa and western portion was allotted in favour of another brother. The learned counsel contend that when Basavanthappa was not having any title, the question of transferring the eastern portion of the property in favour of the appellants herein does not arise. The learned counsel contend that both the Courts held that the sale deed is not valid in respect of the appellants because the very vendor was not having any title in respect of the eastern portion. The learned counsel submits that the suit schedule property is the eastern portion is not in dispute. When such being the material on record, both the Courts not committed any error in coming to the conclusion that the sale deed is not valid, since the vendor is not having any title. The learned counsel submits that when the tenancy was admitted by the appellants that earlier they were the tenants in respect of the eastern portion of the suit schedule property with the father of the plaintiffs, now cannot contend that they are not the tenants. Hence, the First Appellate Court re-analyzing the material on record, comes to the right conclusion and rightly directed to vacate the premises with a direction to pay the -8- NC: 2024:KHC:29553 RSA No. 1344 of 2018 rent of Rs.30/- per month as mesne profits. Hence, it does not require any interference of this Court.
8. Having heard the learned counsel for the appellants and the learned counsel for the respondents and also considering the material on record, in terms of the pleadings of the parties, no dispute that the appellants were the tenants under the father of the plaintiffs and also the registered document of partition deed is also placed before the Court. In terms of the partition deed, the eastern portion was allotted to the father of the plaintiffs and middle portion was allotted in favour of Basavanthappa and western portion was allotted in favour of another brother. The very contention of the learned counsel for the appellants is that they had purchased the eastern portion of the property in which they were tenants earlier and consequent upon the sale deed of the year 1982, they became the owners. It is important to note that they also pleaded that they were the owners and also contend that they have perfected their title by way of adverse possession. It is important to note that when once they contend that they are the owners, they cannot contend that they have perfected their title by way of -9- NC: 2024:KHC:29553 RSA No. 1344 of 2018 adverse possession. They cannot blow hot and cold. In one breath claiming that they are the owners and in another breath claiming that they have perfected the title by way of adverse possession.
9. It is not in dispute that in terms of Ex.P.1 when the eastern portion was allotted in favour of the plaintiffs' father and his uncle Basavanthappa cannot sell the property of the eastern portion and even if any sale is made in favour of the appellants father, that will not convey any better title, since when the vendor was not having any better title in respect of the eastern portion, the question of conveying any ownership in favour of the appellants father does not arise. Having taken note of the said fact into consideration, both the Courts comes to the conclusion that the sale deed does not convey any valid title in favour of appellant No.1. However, the Trial Court committed an error in coming to the conclusion that he has perfected the title by way of adverse possession. I have already pointed out that once he claims that he is the owner, he cannot claim that he has perfected the title by way of adverse possession. The Trial Court lost sight of the appreciation of the material on record and the
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NC: 2024:KHC:29553 RSA No. 1344 of 2018 very finding of the Trial Court is erroneous and hence the First Appellate Court having re-assessed the material on record, comes to the conclusion that the question of claiming adverse possession does not arise. The First Appellate Court having re-assessed the material on record also taken note of the sale deed of the year 1982 and rightly comes to the conclusion that the same does not convey any title. It is also important to note that there are no any rental receipts, but the fact that the appellants are the tenants of the plaintiffs father is not in dispute. It is categorically admitted in the written statement that earlier they were the tenants and when the subsequent sale deed does not convey any better title, the relationship between the plaintiffs and the defendants that they are the owners and tenants will not extinguish and the said relationship will continue. The very claim of the plaintiffs while seeking the mesne profits is only for a particular period for which they have not paid the rent. When such being the claim and when the appellants have not got any title in respect of the suit schedule property, the First Appellate Court rightly having taken note of the admission that earlier they were the tenants, rightly granted the relief of
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NC: 2024:KHC:29553 RSA No. 1344 of 2018 Rs.30/- per month as mesne profits, since the earlier lease agreement was of the year 1951 and at that time, the rent is only Rs.10/- per month. While granting the relief, the First Appellate Court only granted an amount of Rs.30/- per month and reversed the finding of the Trial Court by answering issue No.1 that they are the owners and having admitted the relationship of tenancy earlier, the appellants become the tenants and their right cannot be treated as they are the owners when the very vendor was not having any title in respect of the property, which was conveyed in favour of the appellants. Hence, I do not find any error committed by the First Appellate Court while reversing the finding of the Trial Court in respect of issue No.1 and hence the First Appellate Court is justified in interfering with the issue No.1 in O.S.No.24/2000 and hence I do not find any merit in the appeal to come to other conclusion. Hence, I answer the substantial question of law in the affirmative that the First Appellate Court is justified in interfering with issue No.1 of O.S.No.24/2000 and not committed any error by appreciating the material on record.
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NC: 2024:KHC:29553 RSA No. 1344 of 2018
10. In view of the discussions made above, I pass the following:
ORDER The second appeal is dismissed.
Sd/-
(H.P.SANDESH) JUDGE MD List No.: 1 Sl No.: 60