Sri. Mahadeva vs Smt. Madamma
2022 Latest Caselaw 2320 Kant

                             1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 14TH DAY OF FEBRUARY, 2022

                        BEFORE

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

               R.S.A. No.734/2018 (INJ)

BETWEEN:

SRI.MAHADEVA
S/O LATE MADEGOWDA
AGED ABOUT 41 YEARS
R/AT NO.2158, 2ND CROSS
BASAVESHWARA ROAD
MYSORE - 570006
                                          ... APPELLANT
(BY SRI.A.MADHUSUDHANA RAO, ADVOCATE)

AND:

1.     SMT.MADAMMA
       W/O MADEGOWDA
       AGED ABOUT 61 YEARS

2.     SRI.KAPNI
       S/O MADEGOWDA
       AGED ABOUT 37 YEARS

       RESPONDENT NOS.1 AND 2
       ARE BOTH
       R/AT 3RD CROSS, 'C' BLOCK
       MAHADEVAPURA VILLAGE
       KASABA HOBLI
       MYSURU TALUK
       NOW MYSURU CITY - 570006

                                     ... RESPONDENTS
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     THIS APPEAL IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGEMENT & DECREE DTD 15.04.2017
PASSED IN R.A.NO.90/2016 ON THE FILE OF THE II
ADDITIONAL DISTRICT JUDGE, MYSURU, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 03.12.2014 PASSED IN O.S.NO.739/2010 ON THE
FILE OF THE I ADDITIONAL CIVIL JUDGE AND JMFC,
MYSORE.

     THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:


                          JUDGMENT

This second appeal is by the plaintiff.

2. The plaintiff has failed in both Courts to establish

that he was in possession of the suit property and was hence

entitled for a decree of injunction.

3. The case put forth by the appellant - plaintiff was

that he had become owner of the suit property, which was a

house property, under registered Gift Deed dated 25.02.2010

executed in his favour by his mother. It was stated that the

suit property was carved out of Sy. No.149/2B and his

mother had purchased the same from her vendor through an

unregistered sale deed dated 15.04.1991 and ever since the

date of purchase, she was in possession till she had gifted the

property in his name. It was stated that the katha had been

transferred in her name by the jurisdictional Grama

Panchayath and she was also paying kandayam. It was

stated that after the gift, katha has been changed in his name

and he was also paying kandayam and was in possession.

4. It was alleged that the possession of the plaintiff

was said to be disturbed by the defendants, who were the

wife and son of one Madegowda. It was stated that

Madegowda had sold revenue sites formed in Sy. No.149/2B,

which was totally measuring 19 guntas in the year 1982 and

one of the sites had been sold in favour of the plaintiff's

mother's vendor, namely M.Ramu, under another

unregistered sale deed dated 12.02.1982. It was stated that

the said Ramu had sold the very same property in favour of

his mother under another unregistered sale deed dated

15.04.1991 and along with the sale deed, he had also

executed General Power of Attorney in favour of his mother

apart from an Indemnity Bond on 15.04.1994. It was stated

that the suit property was situated in the revenue layout and

the defendants, who had no right, were trying to interfere

with their possession and therefore, he was constrained to file

the suit.

5. This suit was resisted by the defendants i.e., his

wife and son of Madegowda @ Madu contending that

Madegowda was the owner of Sy. No.149/2B measuring 19

guntas and he had expired on 19.07.1990 and after his

death, they had succeeded to the property and were in

possession of the same. It was stated that the land bearing

Sy. No.149/2B was their ancestral property and all the

revenue records stood in the name of their father Madegowda

@ Madu. It was stated that the defendants had formed

revenue sites and had constructed a small house with A.C.

sheet and were residing therein along with his family

members. It was stated that they had also taken electricity

connection in respect of the house that they had constructed

and the plaintiff had deliberately furnished the wrong

property number, wrong boundaries and measurements of

the suit property. It was stated that the suit property bearing

No.555 (Sy. No.149/2B) was situated at 4th Cross,

Mahadevapura and had distinct boundaries in which they had

constructed five square A.C sheet house on the southern side.

They also stated that they had sunk a bore well and were

drawing water from the said bore well. It was stated that

since they were in possession, the suit for injunction of the

plaintiff could not be entertained.

6. The Trial Court, on consideration of the evidence

adduced by the parties, came to the conclusion that the

plaintiff was not able to establish that he was in possession.

The Trial Court noticed that P.W.2 i.e., Kalamma - the mother

of the plaintiff who had gifted the property to the plaintiff had

herself admitted that the defendants had taken electricity

connection to the said house and therefore, it was clear that

the possession of the suit property was with the defendants.

The Trial Court, accordingly, dismissed the suit.

7. In appeal, the Appellate Court found no reason to

disagree with the findings of the trial Court. Before the

Appellate Court, an application was also filed for production of

additional documents, which were two photographs and the

unregistered sale deed executed in favour of Ramu, who was

the plaintiff's mother's vendor. The Appellate Court refused

to entertain the said application on the ground that

admittedly, the documents were not exhibited before the trial

Court and the sale deed being unregistered, could not be

obviously marked. The Appellate Court, accordingly,

confirmed the findings of the Trial Court and dismissed the

appeal. Being aggrieved, the present second appeal is

preferred.

8. The learned counsel appearing for the appellant

contended that the preponderance of probabilities indicated

that the plaintiff was in possession and therefore, both the

Courts had committed an error in dismissing the suit. He also

submitted that the evidence has been misread by both the

Courts and a stray admission to a suggestion was construed

as evidence, which was impermissible in law.

9. It is not in dispute that the plaintiff claimed to be

in possession on the basis of the registered Gift Deed

executed in his favour by his mother. It is also not in dispute

that the mother, donor, has claimed title over the suit

property through an unregistered sale deed executed by one

Ramu. It is further not in dispute that the said Ramu also

claimed title through another unregistered sale deed from

Madegowda, who is the husband and father of the

defendants. It is, therefore, clear that even as per the

admitted case of the plaintiff, the title was never conveyed to

either his mother or his mother's vendor. Thus, prima-facie

both Courts were justified in coming to the conclusion that

the plaintiff had no title to justify his alleged possession.

10. As far as actual physical possession was

concerned, the Trial Court has noticed that there was a clear

admission by the defendant's mother that there was an

existing house in the suit property and in the said house, the

defendants themselves had obtained electricity connection.

That apart, the defendants also produced the work order and

sanction letter issued by the Electricity Company and also

produced electricity bills to indicate that they were residing in

the suit property. A bore well receipt was also produced to

show that they had sunk a bore well. In fact, the drawing of

water from the said bore well was also not disputed by the

plaintiff.

11. Having regard to these facts, both Courts were

absolutely justified in coming to the conclusion that the

plaintiff had failed to prove his possession. There is no

substantial question of law arising for consideration in this

appeal.

Consequently, the appeal is dismissed.

Since the appeal has been dismissed on merits, the

application filed for condonation of delay is also dismissed.

Sd/-

JUDGE

NBM