Suruthalappa vs K D Thimmaiah
2022 Latest Caselaw 6264 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 07TH DAY OF APRIL, 2022

                        BEFORE

           THE HON'BLE MR.JUSTICE R. NATARAJ

             R.S.A. NO.1250 OF 2019(INJ)

BETWEEN:

1.   SURUTHALAPPA
     AT PRESENT
     AGED 71 YEARS,

2.   GOVINDAPPA
     AT PRESENT
     AGED ABOUT 63 YEARS,

3.   SRINIVAS
     AT PRESENT
     AGED ABOUT 63 YEARS

4.   T. MANJUNATH
     AT PRESENT
     AGED ABOUT 57 YEARS,

5.   SIDDAPPA
     AT PRESENT
     AGED ABOUT 54 YEARS,

6.   HALLAPPA
     AT PRESENT
     AGED ABOUT 51 YEARS,

7.   GANGADHARAPPA
     AT PRESENT
     AGED ABOUT 49 YEARS,

     ALL APPELLANTS ARE SONS OF
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       LATE. SURUTHALI THIMMAIAH AND
       ALL AGRICULTURES BY OCCUPATION,
       R/O HALEPATE, KADUR,
       CHIKKAMAGALURU-DISTRICT,
       PIN CODE NO.577 548.
                                            ...APPELLANTS
(BY SRI. N.V. MANJUNATH, ADVOCATE) (PH)

AND:

1.     K.D. THIMMAIAH,
       AT PRESENT AGED
       ABOUT 54 YEARS,

2.     K.D. HALLAPPA
       AT PRESENT AGED
       ABOUT 49 YEARS,

3.     K.D. RAMASWAMY
       AT PRESENT AGED
       ABOUT 44 YEARS,

       ALL ARE SONS OF LATE. DASAPPA AND
       OCCUPATION OF AGRICULTURES,
       R/O HALEPETE (NEAR
       ANTHARAGHATTAMMA TEMPLE)
       KADUR-CHIKKAMAGALURU -DIST.
       PIN CODE NO.577 548.
                                           ...RESPONDENTS

       THIS RSA FILED UNDER SEC.100 OF CPC AGAINST THE
JUDGMENT AND DECREE DATED 02.04.2019 PASSED IN RA
NO.58/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE AT
KADUR, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 02.09.2015 PASSED IN OS NO
443/2010 ON THE FILE OF THE PRL. CIVIL JUDGE AND JMFC.,
AT KADUR
       THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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                        JUDGMENT

This appeal is filed by the defendants in O.S

No.443/2010, challenging the concurrent finding of fact

that the plaintiffs are in possession of the suit property and

are therefore entitled for perpetual injunction restraining

the defendants from interfering with their possession in the

suit property.

2. The parties shall henceforth be referred to as they

were arrayed before the Trial Court. The appellants herein

were the defendants, while the respondents herein were

the plaintiffs.

3. The suit in O.S No.443/2010, was filed for

perpetual injunction in respect of 34 guntas of land in

Sy.No.53/1 of Mallappanahalli, Kasaba Hobli, Kadur Taluk.

The plaintiffs claimed that their father, Dasappa was the

son of Ramaiah from his first wife, while the defendants

were the children of Thimmaiah, who was the son of

Ramaiah from his second wife. The plaintiffs claimed that

suit property was an ancestral property which then

measured 2 acres 25 guntas in Sy.No.53/1 and stood in

the name of Thimamma W/o Rangadasappa, Parvathamma

W/o Dasappa, Jayamma W/o Govindappa and

Hanumanthappa S/o Ramaiah. After their death, their legal

heirs namely K.R.Murthappa, K.R.Manjappa, plaintiffs,

Jayamma, Srinivasa divided the property on 8.9.2008. At

the said partition, the suit property fell to the share of the

plaintiffs and their name was entered in the revenue

records pursuant to M.R.11/2008-09. The plaintiffs alleged

that though the defendants had no manner of right, title or

interest in the suit property, yet they were interfering with

their possession and were attempting to dispossess them.

Hence the plaintiffs filed the suit for perpetual injunction.

4. The defendants contested the suit. They admitted

the relationship between the parties. They claimed that

the land bearing Sy.No.53 was an ancestral property

which measured 8 acres 28 guntas out of which 2 acres 38

guntas was acquired by the government for formation of

A.P.M.C yard and that the remaining 5 acres 30 guntas

was in the possession of the plaintiffs and defendants.

They claimed that 3 acres was allotted to the share of the

defendant's father while 2 acres 30 guntas was allotted to

the share of the plaintiff's father. They alleged that at a

partition in the family of the plaintiffs, 38 guntas was

allotted to the share of plaintiff's father late Dasappa and

after the death of Dasappa his wife Parvathamma agreed

to sell that 38 guntas of land in favour of the father of the

defendants for a sale consideration of Rs.6,000 and

entered into an agreement on 20.04.1982. They claimed

that from the date of sale agreement, the father of the

defendant was in possession of the suit property and later

they continued to be in possession. They claimed that the

name of Parvathamma was not entered in the revenue

records and it was only in the year 2003-2004 that 7

guntas was transferred to her name pursuant to MR

No.13/2003-2004. Thereafter the defendants approached

Smt. Parvathamma to know why only 7 guntas was

transferred to her name. Then, the plaintiffs assured to get

the Khatha of 34 guntas of land, which they did pursuant

to MR.11/2008-09. The defendants alleged that after

handing over possession of the suit property, they sunk a

borewell and raised a coconut garden by investing huge

sums of money. The defendants alleged that even after

several requests, the plaintiffs did not conclude the

transaction and that the defendants were always ready

and willing to perform their part of the contract. Therefore

they contended that the plaintiffs are not entitled to the

relief of injunction as the plaintiffs were never in

possession. They also contended that they have filed a suit

for a specific performance of the agreement in O.S

No.427/2010 and that the same was pending

consideration. Based on these rival contentions, Trial Court

framed the following issues:

"(i) Whether the plaintiffs prove that they are in lawful possession of the suit property?

(ii) Whether the plaintiffs prove that defendants are illegally trying to interfere with the possession of the plaintiffs over the suit property?

(iii) Whether the plaintiffs are entitled for the reliefs claimed in the suit?

(v) What order or Decree?"

5. The plaintiff No.3 was examined as PW-1 and

he marked documents as Exs.P-1 to P-3. He also examined

a witness as PW-2. The defendant No.4 was examined as

DW-1 and two witness were examined as DW-2 and DW-3

and they marked documents as Exs.D-1 to D-13.

6. Based on the oral and documentary evidence,

the Trial Court held that the defendants did not dispute the

fact that the suit property fell to the share of the father of

the plaintiffs. The Trial Court noticed the claim of the

defendants that 34 guntas in Sy.No.53/1 fell to the share

of Dasappa at a partition between him and his sons and

after the death of Dasappa, his widow Smt.Parvathamma

had allegedly agreed to sell the suit property to the

defendant's father Thimmaiah. Therefore, the Trial Court

held that the title of the plaintiffs to the suit property was

admitted by the defendants and since the land in question

was an agricultural land, it held that the plaintiffs were

deemed to be in possession of the suit schedule property

and therefore decreed the suit for perpetual injunction.

7 Being aggrieved by the aforesaid judgment and

decree, the defendants filed RA No.58/2015. The First

Appellate Court secured the records of the Trial Court.

Heard the learned counsel for the parties and framed the

following points for consideration.

"(i) Whether the impugned judgment and decree of the trial court is against law, facts and probabilities of the case and calls for interference by this court?

(ii) What order?"

8 The First Appellate Court too held that the

antecedent title of the plaintiffs was not disputed by the

defendants. It also held that the defendants were unable

to prove that they were placed in possession of the suit

schedule property under the agreement of sale allegedly

executed by the mother of the plaintiffs and hence

dismissed the appeal and confirmed the judgment and

decree of the Trial Court.

9. Being aggrieved by the aforesaid judgment and

decree, the defendants have filed this Regular Second

Appeal.

10 The learned counsel for the defendants submitted

that the defendant's father was placed in possession of the

suit property and the same was evident under the

agreement of sale executed by Smt.Parvathamma on

20.4.1982 as per exhibit D-2. He stated that as per exhibit

D-2 the possession of the land was handed over to the

father of the defendants and that the defendants were

deemed to be in possession of the said land and therefore

the trial court and the First Appellate Court could not have

decreed the suit for perpetual injunction.

11. I have considered the submission made by the

learned counsel for the defendants. I have also perused

the judgment and decree of Trial Court and First Appellate

Court as well as the grounds urged in this appeal.

12. It is evident from the judgment and decree of

the trial court and first appellate court that the defendants

had acknowledged the title of the plaintiffs to the suit

schedule property. The defendants had claimed that the

mother of the plaintiffs who had an undivided share in the

land bearing Sy.No.53/1 measuring 38 guntas had

allegedly agreed to sell the entire extent to the

defendants, and had delivered possession of the suit

property. However, the claim that the factum of handing

over possession was evident from the agreement of sale

by mother of the plaintiffs, was found to be inoperable

against plaintiffs. Even if such an affidavit was on record,

that would only bind the mother of the plaintiffs and not

the plaintiffs. It is well settled that possession of vacant

land follows title and this Court is not convinced as to how

the defendants were placed in possession. Therefore, the

Trial Court and First Appellate Court was justified in

decreeing the suit for perpetual injunction.

13. I do not see any error in the appreciation of the

evidence by the Trial Court and First Appellate Court and

therefore, no substantial question of law which arises for

consideration in this appeal. Hence the appeal is

dismissed

However, if the defendants are able to prove lawful

execution of the alleged agreement of sale dated

20.04.1982 executed by the mother of the plaintiffs and

that they were placed in possession of the said suit

property, the findings recorded by the Trial Court and First

Appellate Court shall only be restricted to the interest of

the plaintiffs herein and shall not apply to the interest of

Parvathamma, the mother of the plaintiffs.

Sd/-

JUDGE vs