Karnataka High Court
Smt Halamma vs Smt Alice Martis on 11 February, 2022
Bench: M.G.S. Kamal
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE M.G.S.KAMAL
REGULAR SECOND APPEAL NO.1289 OF 2010
BETWEEN:
SMT. HALAMMA
AGED ABOUT 58 YEARS
W/O PUTTANAIKA
AGRICULTURIST
RESIDDING AT
MARALLAIAHNAKOPPALU
KASABA HOBLI
HUNSUR TALUK - 571 105
... APPELLANT
(BY SRI T.P.VIVEKANANDA, ADVOCATE)
AND:
1. SMT ALICE MARTIS
AGED ABOUT 71 YEARS
W/O LATE FELIX JOSEPH D'MELLO
DEAD BY LR'S
2. RAYMOND D'MELLO
AGED ABOUT 46 YEARS
S/O LATE FELIX JOSEPH D'MELLO
3. ANTHONY D'MELLO
AGED ABOUT 41 YEARS
S/O LATE FELIX JOSEPH D'MELLO
4. SILVESTER D'MELLO
2
AGED ABOUT 40 YEARS
S/O LATE FELIX JOSEPH D'MELLO
5. ANIL D'MELLO
AGED ABOUT 38 YEARS
S/O LATE FELIX JOSEPH D'MELLO
...RESPONDENTS
(BY SRI MAHANTESH S. HOSMATH, ADVOCATE FOR
R1-R5).
THIS APPEAL IS FILED UNDER SECTION 100 OF CODE OF
CIVIL PROCEDURE AGAINST THE JUDGEMENT & DECREE DTD
19.11.2007 PASSED IN O.S.NO.104/1998 ON THE FILE OF THE
CIVIL JUDGE (SENIOR DIVISION), HUNSUR AND JUDGMENT
AND DECREE DATED 15/01/2010 PASSED IN R.A.NO.141/2007
ON THE FILE OF THE I ADDITIONAL DISTRICT JUDGE, MYSORE
AND ETC.,
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present regular second appeal is filed by the
appellant/defendant aggrieved by the concurrent
findings and conclusions rendered in the judgment
and decree dated 19/11/2007 in O.S.No.104/1998 by
the Civil Judge (Senior Division) Hunsur (for short
hereinafter referred to as 'the Trial Court') and the
judgment and decree dated 15/01/2010 in
RA.No.141/2007 by the I Additional District Judge,
Mysore (for short hereinafter referred to as 'the first
appellate court').
2. The parties are referred to as per their
original rankings before the trial court.
3. The plaintiffs filed the suit originally before
the Munsiff and JMFC Court at Hunsur in
OS.No.58/1995 which on re-representation for want of
pecuniary jurisdiction and was renumbered as
(OS.No.104/1998). The plaintiffs claiming to be the
wife and sons respectively of late Felix Joseph D'Mello
sought relief of declaration and possession on the
premise that the suit schedule property being land
measuring 6 acres 34 guntas in Sy.Nos.28, 33/8 and
33/11 of Madahalli Kaval also called as palace of
Madahalli Mut Kaval, Kasaba Hobli, Hunsur Taluk,
Mysure District (for short 'suit schedule property') was
purchased by late Felix Joseph D'Mello from His
Highness, the Maharaja of Mysore in terms of a deed
of sale dated 26/12/1956. That the said late Felix
Joseph D'Mello was in possession of the suit schedule
property till his death. That upon his demise on
30/06/1984, the plaintiffs being his legal heirs
succeeded to the suit schedule property and have
been in possession and enjoyment of the same. That
since the plaintiffs were residing at Theerthahalli they
used to come and cultivate and harvest in the suit
schedule property during the seasons. That they had
appointed one Huchhamarinayaka as a manager to
look after the agricultural operations. That when they
came to the suit schedule property in the month of
May, 1995, to their surprise they found that the
defendant had trespassed into suit schedule property.
On an enquiry from the Revenue Office, the plaintiffs
learnt that taking undue advantage of their absence,
defendant had got her name mutated in the revenue
records in collusion with the revenue officials. That
cause of action for the suit thus arose on and from
May 1995. Hence, sought for declaration, possession
and mesne profits.
4. Upon service of summons, the defendant
appeared and filed written statement denying
relationship of plaintiffs with Felix Joseph D'Mello.
However admitted that Sri Felix Joseph D'Mello
purchased the suit schedule property from Maharaja
of Mysore under deed of sale dated 26/12/1956 and
denied further the plaint averments. That the
defendant had earlier filed suit in OS.No.140/1990
against Huchamarinaika and others for injunction
which was dismissed as not pressed. It is contended
that originally, the suit schedule property belonged to
the Mysuru Palace. That one Smt. Ningamma W/o
Narasanaika and Sri Puttanaika S/o Sri Narasanaika,
the mother-in-law and the husband respectively of the
defendant were the tenants in respect of the suit
schedule property cultivating the same right from the
year 1950. That earlier suit schedule property was
referred to by Sy.No.45 and were sold by His Highness
Maharaja of Mysuru in favour of one K. Anthony
D'Mello S/o D'Mello. Even after the sale of suit
schedule property in favour of Sri P.T. D'Mello an
endorsement dated 30/11/1956 was issued by palace
estate to Sri K.Anthony D'Mello. Smt. Ningamma and
Puttanaiaka continued to cultivate the suit schedule
property under the said K.Anthony D'Mello by
executing Gutta agreement in his favour. When the
Karnataka Land Reforms Act came into force, Sri
Puttanaika, the husband of the appellant/defendant
wanted to file application for registration as tenant in
respect of the suit schedule property. However, since
the said K.Anthony D'Mello had prevailed upon him,
he did not file the declaration. That on 18/02/1989,
said Felix Joseph D'Mello son of K.Anthony D'Mello
sold the land in favour of the defendant. That the
plaintiffs have not been in possession of suit schedule
property. That they have perfected their title by way
of adverse possession. Hence, sought for dismissal of
the suit with exemplary costs.
5. The Trial Court based on the pleadings
framed/recasted the following issues and additional
issues:
(1) Whether the plaintiffs prove that
they are the owners of the suit
schedule property?
(2) Whether the defendant proves
that she is the absolute owner of the
suit schedule properties as contended
in para-12 of her written statement?
(3) Whether the defendant proves
that she is in lawful possession of the
suit schedule properties?
(4) What order or decree?
ADDITIONAL ISSUES
(1) Whether the plaintiffs 1 to 5
prove that they have executed G.P.A.
in favour of Sri Huchamarinaika to
conduct their case?
(2) Whether the plaintiffs prove
their exclusive possession over the
suit schedule property till May 1995?
(3) Whether the plaintiffs prove that
they were dispossessed from the suit
schedule property during May 1995
by the defendant?
(4) Whether the plaintiffs are
entitled for the relief of declaration?
6. The plaintiff No.2 Raymond D'Mello
examined himself as P.W.1 and exhibited 8 documents
as per Ex.P1 to Ex.P8. On the other hand, the
defendant and one Puttanaika have been examined as
DWs.1 and 2 and exhibited 41 documents as Exs.D1
to D41. On appreciation of evidence, the Trial Court,
by its judgment and decree dated 19/11/2007
decreed the suit declaring that the plaintiffs to be the
owners of the suit schedule property and directed the
defendant to deliver the possession of the suit
schedule property to the plaintiffs within 3 (three)
months from the date of decree and further directed
for enquiry to be held for current and future mesne
profits.
7. Aggrieved by the same, defendant filed
regular appeal in RA.No.141/2007 before the first
appellate court. Considering the grounds urged in the
appeal memo, the first appellate court framed the
following points for its consideration.
(1) Whether the application filed by the
appellant under Order 14 Rule 5 of CPC is
liable to be allowed? If so,
ADDITIONAL ISSUES
(1) Whether the defendant proves that the
suit filed by the plaintiffs is barred by the
principles of law of Limitation?
(2) Whether the impugned judgment and
decree suffers from any illegality or
infirmity?
(3) Whether interference with the
impugned judgment and decree is
necessary?
8. On re-consideration of oral and
documentary evidence, the first appellate court, by its
judgment and decree dated 15/01/2010 dismissed the
appeal of the defendant and confirmed the judgment
and decree passed by the Trial Court. Being aggrieved
with the same, the appellant/defendant is before this
Court in this regular second appeal.
9. Sri T.P.Vivekananda, learned counsel for
the appellant/defendant reiterating the grounds urged
in the appeal memorandum submitted;
(i) That no evidence was produced by the
plaintiffs for having taken possession of the
suit schedule property and cultivating the
same before and subsequent to the death of
Felix Joseph D'Mello.
(ii) That the courts below have failed to
notice that the plaintiffs did not produce any
material regarding they reporting death of
Felix Joseph D'Mello to the revenue authority
and getting their names mutated in revenue
records as required under law.
(iii) That the defendant had produced
guttakarar for having paid guttige in respect of
suit property from the year 1957 onwards to
K.Anthony D'Mello which would establish her
possession over the suit schedule property.
(iv) That the courts below erred in not
appreciating the plea of adverse possession on
the premise that the possession of the
defendant was not adverse to real owner, as
she claims ownership under Deed of Sale dated
12/06/1989 - Ex.D2 which executed by Felix
Joseph D'Mello S/o K.Anthony D'Mello.
Hence, he submits that the appeal involves
substantial question of law requiring consideration.
Hence, sought for allowing the appeal.
10. On the other hand, Sri Mahantesh
S.Hosmatha, learned counsel for the plaintiff Nos.1 to
5 submitted;
(i) That the plaintiffs have established
their right, title and interest over the suit
schedule property being wife and sons of
late Felix Joseph D'Mello, who had
purchased the suit schedule property in
terms of registered deed of sale dated
26/12/1956.
(ii) This being the factual position, the
claim of defendant having purchased the
same from Felix Joseph D'Mello S/o
K.Anthony D'Mello on 12/06/1989 could not
evince the credibility.
(iii) That the trial court and the first
appellate court having noticed these aspects
of the matter have even negated the claim
of the defendant regarding plea of adverse
possession.
As such, he submits that no substantial question
of law arises in this matter requiring consideration.
Hence, sought for dismissal of the appeal.
11. Heard the learned counsel for the parties
and perused the records.
12. There is no dispute with regard to the fact
that the suit schedule property which belonged to the
Mysore Palace was purchased by Felix Joseph D'Mello
S/o Bernard D'Mello in terms of deed of sale dated
26/12/1956 and the said Felix Joseph D'Mello had
neither sold nor created any third party interest in
respect of suit schedule property in favour of any
person. Such being the case, upon demise of the said
Felix Joseph D'Mello, the suit schedule property being
his estate devolved upon his legal representatives
namely, the plaintiffs.
13. Case of the defendant is that her mother-
in-law and husband were cultivating the land from the
year 1950 onwards under one K.Anthony D'Mello. That
subsequently on 12/06/1989 his son Felix Joseph
D'Mello sold the suit schedule property in favour of
defendant. Alternatively, the defendant has also set
up a plea that the suit of the plaintiffs barred by
limitation, as such defendant had perfected her title
over the suit schedule property by way of adverse
possession.
14. The aforesaid defense of the defendant
cannot be countenanced as admittedly Felix Joseph
D'Mello, the husband and father of the plaintiffs was
the owner of the suit schedule property having
purchased same in terms of deed of sale dated
26/12/1956 and there being no further conveyance
question of Felix Joseph D'Mello S/o K. Anthony
D'Mello selling the suit schedule property on
12/06/1989 in favour of the defendant does not arise
and any such conveyance does not evince the
credibility in the eye of law .
15. Since the defendant is claiming to be the
owner of the suit schedule property having purchased
same on 12/06/1989, the plea of she perfecting the
title over the suit schedule property by prescription
also cannot be countenanced as it is not her case that
she is in possession of the suit property adverse and
hostile to the interest of true owner namely, Felix
Joseph D'Mello and or his legal representatives
namely, plaintiffs.
16. The trial court and the first appellate court
have taken note of these aspects of the matter and
the material evidence led by the parties in this regard
in detail. That apart the courts below have also taken
into consideration suit filed in OS No.140/1990 against
Huchamarinaika which was subsequently withdrawn
and also the said Huchamarinaika filing complaint
against the defendant before the Forest Department
to negate the claim of the defendant being in
possession of suit schedule property. There is no
illegality or infirmity in the concurrent findings of the
courts below. In that view of the matter, no
substantial question of law is involved in this appeal
requiring consideration. In the result, the following.
ORDER
i) Regular Second Appeal No.1289/2010
filed by the appellant/defendant is
dismissed.
ii) The judgment and decree dated
19/11/2007 passed in
OS.No.104/1998 by the trial court
and the judgment and decree dated
15/01/2010 passed in
RA.No.141/2010 by the first appellate
court are confirmed.
Sd/-
JUDGE
Mkm
