Sri K T Mahalingaiah vs Sri K V Shanmukaiah
2022 Latest Caselaw 1735 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 4TH DAY OF FEBRUARY, 2022

                      BEFORE

     THE HON'BLE MR. JUSTICE N.S. SANJAY GOWDA

 REGULAR SECOND APPEAL NO.340/2017 (DEC-INJ)

BETWEEN:

SRI K.T. MAHALINGAIAH,
S/O. LATE SRI TOPINAIAH,
AGED ABOUT 51 YEARS,
R/AT B. KODIHALLI,
KADABA HOBLI, GUBBI TALUK,
TUMAKURU DISTRICT-572 219
                                     ... APPELLANT
(BY SRI BHARGAV G.,
FOR SRI K.M. SOMASHEKARA, ADVOCATE
(THROUGH VIDEO CONFERENCING))

AND :


1.     SRI K.V. SHANMUKAIAH,
       S/O. LATE SRI VOGGAIAH,
       AGED ABOUT 59 YEARS,
       R/AT B. KODIHALLI,
       KADABA HOBLI, GUBBI TALUK,
       TUMAKURU DISTRICT-572 219
                            2



2.   THE CHIEF SECRETARY,
     GOVERNMENT OF KARNATAKA,
     VIDHANA SOUDHA,
     BENGALURU-560 001

3.   SPECIAL LAND ACQUISITION OFFICER,
     HEMAVATHI CHANNEL,
     MINI VIDHANA SOUDHA,
     TUMKUR-572 101
                                ... RESPONDENTS
(BY SRI C.G. GOPALASWAMY, ADVOCATE FOR R1;
SMT. B.G. NAMITHA MAHESH, AGA FOR R2 & R3
(THROUGH VIDEO CONFERENCING))

     THIS REGULAR SECOND APPEAL IS FILED U/S
100 OF CPC AGAINST THE JUDGMENT AND DECREE
DTD:02.12.2016 PASSED IN R.A. NO.48/2012 ON THE
FILE OF THE SENIOR CIVIL JUDGE, AT GUBBI,
DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DTD: 31.10.2012 PASSED IN
O.S. NO.90/2005 ON THE FILE OF THE CIVIL JUDGE
AND JMFC, GUBBI.

     THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THROUGH VIDEO CONFERENCE AT BENGALURU
THE COURT DELIVERED THE FOLLOWING:


                      JUDGMENT

Sri K.V. Shanmukhaiah - the 1st respondent filed

a suit, initially, seeking for declaration and permanent

injunction. Subsequently, by way of an amendment

he also sought for possession in respect of 'B'

schedule property.

2. It was his case that one Voggodaiah had a son

called Mallaiah and Mallaiah had three sons, namely,

Rangaiah, Sannaiah and Voggaiah, who constituted a

Hindu Joint Family, which possessed several

properties including the suit property. It was stated

that khatha in respect of suit property stood in the

name of Mallaiah.

3. It was also stated that the second son of

Mallaiah i.e. Sannaiah had died issueless and his wife

had also passed away and as a consequence on the

death of Mallaiah his remaining two sons i.e. Voggaiah

and Rangaiah had divided their joint family properties

several decades ago. It was also stated that the suit

property along with other properties had fallen to the

share of Voggaiah and he was in possession of the

same.

4. It was stated that Voggaiah had four sons,

namely, K.V. Shanmukhaiah (the plaintiff),

Mallikarjunaiah, Mahalingaiah and Virupakshaiah who

together constituted Hindu Joint Family. It was stated

that the suit schedule property was allotted to the

share of his father Voggaiah and after Voggaiah's

death in the year 1997, the suit property devolved to

the plaintiff and his three remaining brothers who

were in joint possession.

5. It was stated that on the basis of a compromise

decree passed in O.S. No.79/1986, the 3rd defendant

K.T. Mahalingaiah claimed title to the property and

sought for change of entries and he had also filed a

suit for permanent injunction. It was stated that the

Revenue Entries were changed in favour of the 3rd

defendant and he had preferred an appeal to the

Assistant Commissioner who however, dismissed the

appeal. It was stated that the decree passed in O.S.

No.79/1986 was of no consequence and the same did

not bind the plaintiff. It was further stated that the

State had acquired 1 acre 20 guntas of land out of 4

acres 20 guntas in Survey No.32/2 for the formation

of Hemavathi Channel and an award was passed for

an amount of Rs.85,511/- and notice of the award had

been issued to Mallaiah S/o. Voggodaiah, the grand

father of the plaintiff. It was stated that the State had

acquired 30 guntas of land in the suit schedule

property on the southern side and there remained an

extent of 1 acre 14 guntas, which was the suit

schedule property. It was stated that the plaintiff had

been dispossessed by the 3rd defendant during

pendency of the suit and was in unauthorized

possession.

6. It was also stated that on dismissal of the appeal

by the Assistant Commissioner, the 3rd respondent

had in fact approached defendant No.2 and staked a

claim to receive compensation in respect of the

acquisition and since attempts would be made to claim

the compensation, the plaintiff was constrained to

seek for declaration and for permanent injunction.

7. The State which was arrayed as defendant Nos.1

and 2 did not contest the suit.

8. The 3rd defendant i.e. appellant contested the

suit by denying all plaint averments, except the

proceeding initiated in O.S. No.79/1986 and revenue

proceedings. It was stated that the order of the

Assistant Commissioner by which the appeal of the

plaintiff challenging the mutation in favour of the 3rd

defendant had became final and therefore it was not

open to the plaintiff to seek for declaration. Though

he admitted that neither the plaintiff nor his father

were parties in O.S. No.79/1986 he stated that they

were not necessary parties as they had no title. He

denied the assertion of the plaintiff that land that to

an extent of 1 acre 20 guntas had been acquired and

that an award has been passed in the name of

Mallaiah. It was stated that the Special Land

Acquisition Officer could have possibly passed an

award without holding proper enquiry and therefore,

that did not create any interest in the plaintiff. He

also stated that he had sought for a reference under

Sections 18 and 30 of the Land Acquisition Act and

there was a bar for filing of suit under Section 52 of

Land Acquisition Act.

9. The 3rd respondent contended that he being the

owner was in possession and enjoyment of 2 acres 4

guntas in Survey No.32/2 and had secured possession

and also title from the previous owners by virtue of

the compromise decree passed in O.S. No.79/1986. It

was stated that neither the plaintiff nor his brothers

had any right in respect of the said extent of 2 acres 4

guntas. He did admit that 30 guntas of land had been

taken over for the formation of Hemavathi Channel

and for this he was entitled for compensation.

10. An additional statement was also filed stating

that the question of dispossession of plaintiff does not

arise as he was never in possession. He denied the

assertion that he was in unauthorized possession.

11. The Trial Court on consideration of the evidence

adduced before it, came to the conclusion that

Voggaiah had died intestate and the plaintiff had

proved that he and his brothers were co-owners and

they are in joint possession of the suit schedule

property. The Trial Court also held that the plaintiff

had proved that the decree passed in O.S.

No.79/1986 was not binding on the plaintiff and that

he was entitled to receive the compensation awarded

by the Land Acquisition Officer.

12. Lastly, the Trial Court held that the plaintiff had

proved that the 3rd defendant was in unauthorized

possession over the suit property and the plaintiff was

entitled to recovery of possession of the 'B' schedule

property.

13. Accordingly the Trial Court decreed the suit and

declared that the plaintiff and his brothers were the

co-owners of the land bearing Survey No.32/2

measuring 4 acre 18 guntas (out of which 2 acres 4

guntas had been acquired by the State). The Trial

Court also directed the 3rd defendant to deliver the

possession to the plaintiff within a period of 3 months

and on his failure, permitted the plaintiff to take

necessary action under law for recovering the

possession. It was also held that the plaintiff and his

brothers were entitled to receive the compensation

awarded in respect of the portion of the land which

had been acquired.

14. Being aggrieved, the 3rd defendant preferred an

appeal before the first Appellate Court. The first

Appellate Court on re-appreciation of the evidence

came to the conclusion that the findings recorded by

the Trial Court could not have found fault with and the

assessment of the evidence by the trial Court was

proper and correct. It accordingly confirmed the

decree of the trial Court and dismissed the appeal.

15. It is as against these concurring judgments, the

present second appeal is filed.

16. Learned counsel for the appellant contended that

plaintiff had acquired valid title over the suit property

by virtue of a compromise decree that he had entered

into with Rangaiah and Nagaiah in O.S. No.79/1986

who were the children of Rangaiah (the brother of

Mallaiah). He submitted that the suit property was

joint family property of Mallaiah (the grand father of

the plaintiff), Rangaiah (father of his vendors) and

Chikkalakkappa. He contended that the suit schedule

property had fallen to the share of Rangaiah and after

Rangaiah's death, his sons had entered into

agreement to sell with the 3rd defendant on

11.02.1986 and this agreement to sell was the subject

matter of O.S. No.79/1986 in which the parties had

entered into the compromise and his vendors had

conceded for a decree.

17. Learned counsel contended that appellant's

vendors i.e., Rangaiah and Nagaiah had in fact

mortgaged the suit property in favour of K.R.

Rangaiah (who was the son of Rangaiah i.e., the first

son of Mallaiah i.e. the grand father of the plaintiff).

He submitted that this mortgage was redeemed by

way of a registered instrument in 13.02.1986 as per

Ex.D2 and this established that his vendors were the

owners of the suit property and as consequence he

was entitled to be in possession.

18. The claim of the plaintiff was that the suit

property belong to Voggaiah. In order to establish

this fact, revenue record were produced in which the

name of Mallaiah i.e. grand father of the plaintiff had

been entered.

19. The Trial Court as well as the Appellate Court on

appreciation of the evidence has come to the

conclusion that the suit property had devolved to the

father of the plaintiff and thereafter to the plaintiff and

his brothers.

20. It is to be stated here that the 3rd defendant

claimed title on the basis of a compromise decree,

which had been passed in the suit instituted by him

for injunction. Admittedly, this compromise decree

was not registered, as a result of which, there is no

registered instrument conveying title of the suit in

favour of the 3rd defendant. If 3rd defendant has no

title over the suit property, then, obviously, he cannot

stake a claim to retain possession in view of the

settled principle that possession follows title.

21. O.S. No.79/1986 was admittedly a suit for

permanent injunction. Even if the compromise was

entered into in the said suit, obviously title would not

stand conveyed to the 3rd defendant. Merely because

the defendants therein conceded for a decree in

favour of the plaintiff that would not tantamount to a

transfer of the property in favour of the 3rd

defendant.

22. The argument that Rangaiah and Nagaiah (his

vendors) mortgaged the property in favour of one K.R.

Rangaiah and the mortgage was redeemed by

registered instrument and this established the fact

that his vendor possessed title cannot be accepted.

There was no material produced to show that at any

point of time the name of Rangaiah and Mahaningaiah

was entered into the revenue records. There is also

no evidence to indicate that the name of the father of

the 3rd defendant's vendors who was also named

Rangaiah had been entered into revenue records.

23. An attempt was made by the learned counsel

that there had been a partition between Mallaiah and

Rangaiaha and Chikkalakkappa and the suit property

had fallen to the share of Rangaiah under an oral

partition. However, no oral or documentary evidence

is forthcoming to establish that there was an oral

partition in which the father of the 3rd defendant's

vendor was allotted the suit property. In short, there

was absolutely no material to indicate that the

vendors of the plaintiff possessed title over the suit

property.

24. Both the Courts, in my view were absolutely

justified in coming to the conclusion that the plaintiff

had proved that the suit property was the property of

the plaintiff and his brothers and as a consequence he

was entitled for possession. There is no substantial

question of law arises for consideration of the second

appeal and it is accordingly dismissed.

Sd/-

JUDGE

SBS