Karnataka High Court
Baburao S/O Arjun Rao Biradar vs Karnataka Housing Board ... on 7 February, 2022
Bench: J.M.Khazi
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 07TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MRS.JUSTICE J.M.KHAZI
RSA.No.7391/2013
BETWEEN:
BABURAO S/O ARJUN RAO BIRADAR
AGE: 60 YEARS OCC: PVT. SERVANT
R/O: VILLAGE DHUMMANSUR
TQ: HUMANABAD
DIST: BIDAR
AT PRESENT R/O; KOREMANGAL AREA,
BANGALORE.
... APPELLANT
(BY SRI. HARSHAVARDHAN R. MALIPATIL, ADVOCATE)
AND:
01. KARNATAKA HOUSING BOARD, BANGALORE
REPRESENTED BY ITS MANAGER,
DISTRICT PROJECT OFFICER,
KHB, DIST: BIDAR - 585 401.
02. DAULAPPA S/O MALLAPPA HARIJAN
AGE: MAJOR OCC: GADWANTI
TQ: HUMANABAD DIST: BIDAR - 585 401.
2
03. KISHAN RAO S/O BABURAO DHUMMANSUR
DEAD BY HIS LRS.
03A. GIRIJABAI D/O LATE KISHAN RAO
AGE: 39 YEARS
R/O: DHAMNSUR TQ: HUMANABAD
DIST: BIDAR.
... RESPONDENTS
(BY SRI.SRIVAKUMAR MALLIPATIL ADVOCATE FOR R1
NOTICE TO R2 AND R3(A) SERVED)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CODE OF CIVIL PROCEDURE PRAYING TO
ALLOW THIS APPEAL WITH COST AND SET ASIDE THE
JUDGMENT AND DECREE IN R.A.NO.6 OF 2012 ON THE
FILE OF SENIOR CIVIL JUDGE AT HUMANABAD DATED
03.08.2013 AND SET-ASIDE THE JUDGMENT AND DECREE
OF THE LEARNED PRINCIPAL CIVIL JUDGE AT HUMANABAD
DATED 01.02.2012 IN O.S.NO.34 OF 2007 AND
CONSEQUENTLY DECREE THE SUIT OF THE PLAINTIFF.
THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:-
3
JUDGMENT
This is plaintiff's second appeal against concurrent
judgments of the trial court as well as first appellate court,
whereby the suit for declaration and injunction came to be
dismissed.
2. For the sake of convenience the parties are
referred by their rank before the Trial Court.
3. It is the case of the plaintiff's that suit
schedule property originally belong to his father. He died in
the year 1965 leaving behind plaintiff and his mother -
Ratnamma as his legal heirs. Suit schedule property was
mutated in the name of Ratnamma. Since plaintiff was
working at Bengaluru, his mother joined and started
leaving him from 1970.
4. Defendant No.3 is the brother of Ratnamma.
He used to cultivate suit schedule property on crop sharing
basis. Occasionally, Ratnamma used to visit suit schedule
property.
5. Plaintiff has alleged that defendant No.3 by
impersonation got a registered sale deed dated
17.09.1974 in his favour in respect of suit schedule
property. In turn he has executed a sale deed dated
25.03.1975 in favour of defendant No.2. Further,
defendant No.2 has sold some portion of suit schedule
property in favour of defendant No.1 and remaining extent
in favour of defendant No.4.
6. The mother of plaintiff i.e., Ratnamma died
during 1987. Thereafter, when plaintiff visited the village
he came to know about the Khata in the name of
defendant No.1 and after enquiry he came to know about
the cheating.
7. Plaintiff has alleged that the three sale deeds
in respect of suit schedule property are false, bogus and
not binding on him. They are required to be declared as
null and void. The cause of action arose during October
2006 and hence the suit.
8. When the matter is pending before the Trial
court, Defendant No.4 has died. However, plaintiff has not
chosen to bring his LRs on record and as such suit against
him has abated.
9. Defendants No.1 to 3 have filed written
statement contending that defendant No.1 has purchased
land in Sy.No.8/1 measuring 05 acres 31 guntas from
defendant No.2 through registered sale deed dated
11.04.1988. Defendant No.1 has purchased 03 acres in
Sy.No.8/1 in favour of defendant No.1 and by virtue of
these sale deeds, defendant No.1 has became owner of
entire land in Sy.No.8/1 measuring 08 acres 31 guntas. In
turn defendant No.1 has sold the said property in favour of
Rajiv Gandhi Rural Hosing Corporation Limited and as on
the date of suit the suit land is in its possession. The said
Corporation is a necessary party.
10. As an alternative plea defendant No.1 has set-
up title by adverse possession.
11. Based on the pleadings the Trial Court framed
the issues and additional issue.
12. Plaintiff examined himself as PW.1, two
witnesses as PWs.2 and 3 and relied upon Exs.P.1 to 20.
On behalf of defendant No.1 DW.1 is examined and
Exs.D.1 to 5 are marked.
13. Answering issue No.1 that the sale deed dated
17.09.1974 is an outcome of impersonation in the negative
and remaining issues in favour of the defendants, Trial
court dismissed the suit.
14. The First Appellate Court also rejected the
contention of the plaintiff that defendant No.3 being
brother of plaintiff's mother - Ratnamma has got executed
the sale deed dated 17.09.1974 by impersonation and
dismissed the appeal.
15. Plaintiff has challenged the concurrent
judgments of the Trial Court as well as the First Appellate
Court contending that the Courts below were not justified
in dismissing the suit for non-joinder of necessary parties,
even when application of plaintiff for impleading the said
party is rejected by the Trial Court. However, plaintiff has
not produced any documents to show that he had filed
such application and it came to be rejected. Admittedly,
plaintiff has not challenged any such order. In fact, from
the grounds of appeal urged before the First Appellate
Court also this ground is not forthcoming. Moreover, the
suit of the plaintiff is dismissed on merits and not on the
ground of non-joinder of necessary party and answering
issue No.3 regarding non-joinder of necessary party
against plaintiff does not have any implication on the
merits of the case.
16. The plaintiff has also urged that the Trial Court
has not framed issue regarding identity of the property.
Though in the written statement defendants No.1 to 3
have pleaded that re-survey No.8/2 is not at all situated in
Dhumsur village and it was not the one purchased by it,
the averments in the subsequent paragraphs makes it
evident that the defendants No.1 to 3 are not having any
dispute with regard to the identity of the suit schedule
property. In fact, the claim of the plaintiff is not rejected
on the basis of identity of the suit schedule property.
Therefore, question of framing such issue does not arise at
all.
17. One more ground urged that defendant No.1
being a State Institution, it cannot claim plea of adverse
possession against its citizens and therefore, answering
issue No.4 in the affirmative is wrong. It is pertinent to
note that defendants No.1 to 3 more particularly defendant
No.1 has put forth plea of adverse possession as an
alternative plea. When the Trial Court as well as the First
Appellate Court answered the issue with regard to title of
defendants No.1 to 3 vide the sale deeds, the question of
answering issue No.4 regard adverse possession was not
necessary.
18. Therefore, I hold that no question of law would
arise let alone any substantial question of law and
therefore, the appeal is dismissed as devoid of merits.
SD/-
JUDGE
KJJ
