Sri Subbaraya vs Sri Gurappa Shetty
2022 Latest Caselaw 2422 Kant

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   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 15TH DAY OF FEBRUARY, 2022

                         BEFORE

          THE HON'BLE MR.JUSTICE M.G.S.KAMAL

     REGULAR SECOND APPEAL NO.614 OF 2012

BETWEEN:

Sri.Subbaraya
S/o Late Kadaiah
Aged about 77 years
R/at Maradiyur Village
Harnahalli Hobli
Periyapatna Taluk
Mysore District.                               ... Appellant
(By Sri.Y.D.Harsha, Advocate)


AND:

Sri.Gurappa Shetty
S/o Late Sannappa Shetty
Major
R/at Guruvayyana Koppalu Grama
Bettadapura Hobli
Periyapatna Taluk
Mysore District
                                              ...Respondent

(By Sri.P.Lakshminarayana, Adv)

     This appeal is filed under Section 100 of Code of Civil
Procedure against the Judgment & Decree dated
14.12.2011 passed in R.A.No.53/2010 on the file of the
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Senior Civil Judge and JMFC, Hunsur, dismissing the
appeal and upholding the judgment and decree dated
18.10.2010 passed in O.S.No.258/2002 on the file of the
Civil Judge and JMFC, Periyapatna.

      This appeal coming on for admission, this day, the
Court delivered the following:

                    JUDGMENT

The present regular second appeal is filed by the

defendant aggrieved by the concurrent findings and

conclusions rendered in the judgment and decree

dated 18/10/2001 passed in O.S.No.258/2002 on the

file of the Civil Judge and J.M.F.C, Periyapatna

(hereinafter referred to as 'the Trial Court') and the

judgment and decree dated 14/12/2011 passed in

R.A.No.53/2010 on the file of the Additional Senior

Civil Judge, Hunsur, sitting at Periyapatna (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 plaintiff filed the above suit for relief of

declaration and permanent injunction in respect of the

suit schedule property being land in Sy.No.35/06

measuring 1 acre 35 guntas situated at

Thammadahalli village, Bettadapura Hobli,

Periyapatna Taluk, on the premise that he had

purchased the same under a registered Deed of Sale

dated 16/10/1974 executed by Sri.Ramaiah,

S/o.Krishnaiah for himself and his minor sons, viz.,

Krishna and Ramachandra and also his sister

Smt.Ramamma, daughter of Krishnaiah. That the

defendant was also one of the witnesses to the said

Deed of Sale. That defendants without having any

right, title or possession over the schedule property

had filed regular appeal in R.A.No.36/1999-2000

before the Assistant Commissioner, Hunsur,

challenging the revenue entries, whereby name of the

defendant was entered by deleting the name of the

plaintiff. That the plaintiff had also preferred Revision

Petition in R.P.No.29/2000-01 before the Deputy

Commissioner, who upheld the order of the Assistant

Commissioner. Being aggrieved by the said order,

Writ Petitions in W.P.Nos.34752-34753/2007 were

filed before this Court, wherein this Court by order

dated 05.03.2002, had directed to file a suit before a

Court of competent jurisdiction and seek appropriate

remedy with respect to title and possession of the

property. That by taking advantage of illegal entries,

the defendant was causing interference in the peaceful

possession and enjoyment of the plaintiff over the suit

schedule property and even denied the title of the

plaintiff which constrained the plaintiff to file the suit

for declaration and permanent injunction.

4. Defendant filed written statement denying

the plaint averments. It was contended that owner of

the suit property by name Krishnaiah passed away

long back leaving him behind, his wife Kendamma and

a son by name Ramaiah and daughter by name

Ramamma. The said Kendamma died long back.

Their son Ramaiah also died on 06/08/2002.

Daughter Ramamma who is the mother of the

defendant died about 8 years ago. That the defendant

and one T.K.Krishna are the only sons of his mother

Ramamma. His brother T.K.Krishna also passed

away. That Ramamma and her brother Ramaiah had

divided their father's property about 60 years back

and severed from the joint family. In the said

partition, the suit schedule property measuring 1 acre

31 guntas had fallen to the share of his mother-

Ramamma. That he and his mother were jointly

cultivating the suit schedule property and after demise

of his mother, he and his family members came in

possession and enjoyment of the entire property.

That pursuant to the partition that had taken place,

revenue entries were effected in the name of his

mother. The plaintiff had obtained the revenue

records illegally in respect of the suit schedule

property in his favour. That the said illegal entries had

been rightly challenged by him before the Assistant

Commissioner and had got them cancelled. The said

order was confirmed by the Deputy Commissioner in

the Revision Petition. That his maternal uncle

Ramaiah had no manner of right over the schedule

property to convey in favour of the plaintiff. His

mother had not at all alienated any bit of land in

favour of plaintiff. His mother was not an executant

to the registered Deed of Sale. That he has been in

continuous possession and enjoyment of the property.

The suit is barred by time as the Deed of Sale is of the

year 1974. The suit was filed after 28 years. Hence,

sought for dismissal of the suit.

5. The Trial Court based on the pleadings

framed the following issues and additional issues:

(1) Whether the plaintiff proves that the plaintiff is the absolute owner of the schedule property?

(2) Whether the plaintiff proves that he was in lawful possession of the suit schedule property as on the date of filing of suit?

(3) Whether the alleged interference is true?

(4) What order ?

ADDITIONAL ISSUES:

(1) Whether the defendant proves that he acquired the title to the suit schedule property by adverse possession?

(2) Whether the suit is barred by law of limitation?

6. The plaintiff examined himself as P.W.1

and two additional witnesses have been examined as

PWs.2 and 3 and exhibited 13 documents as per Ex.P1

to Ex.P13. On the other hand, the defendant

examined himself as DW.1 and exhibited 10

documents as Exs.D1 to D10.

7. On appreciation of evidence, the Trial

Court, by its judgment and decree dated 18/10/2010

decreed the suit of the plaintiff declaring him to be the

absolute owner in possession of the suit schedule

property and it was further ordered that the defendant

was restrained from interfering over the suit schedule

property.

8. Aggrieved by the same, defendant filed

regular appeal in R A No.53/2010 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 appellant proves that he has perfected title over the schedule property by way of adverse possession and has become the absolute owner?

(2) Whether the respondent proves that he has become the absolute owner of suit schedule property vide sale deed dated 16/10/1974 and he is in physical possession?

(3) Whether the interference in the impugned judgment by this Court is called for?

(4) What order?

9. On re-appreciation of oral and documentary

evidence, the first appellate court, by its judgment

and decree dated 14/12/2011 dismissed the appeal of

the defendant and confirmed the judgment and decree

passed by the Trial Court. Being aggrieved with the

same, the defendant is before this Court in this

regular second appeal.

10. Sri Y.D.Harsha, learned counsel for the

defendant reiterating the grounds urged in the appeal

memorandum submitted;

(i) That the courts below have failed to

appreciate that the Deed of Sale at Ex.P7

was concocted and created document. That

in a suit for declaration the burden is on

the plaintiff to establish the title, execution

of deeds of conveyance and possession,

particularly when the same has been

denied by the defendant. In the instant

case, the plaintiff had not proved Ex.P7 in a

manner known to law.

(ii) That the name of Ramamma was

found in the revenue records, in that view

of the matter, the plaintiff has failed to

establish the possession over the property.

The endorsements issued by the Tahsildar

would prove the name of the plaintiff was

not mutated in the revenue records, which

would categorically establish the defendant

to be the absolute owner of the property.

(iii) That the defendant and his mother

have been in long uninterrupted/

continuous possession and enjoyment of

the suit schedule property for more than

statutory period of 12 years. As such, the

courts below erred in not appreciating

these aspects of the matter which gives

rise to substantial question of law requiring

consideration. Hence, sought for allowing

the appeal.

11. Heard the learned counsel for the

defendant.

12. It is not in dispute that the land in

Sy.No.35/06 measuring 1 acre 35 guntas of

Thammadahalli village, Bettadapura Hobli,

Periyapatna Taluk, originally belonged to one

Krishnaiah. The said Krishnaiah had a son by name

Ramaiah and daughter by name Ramamma. In terms

of deed of sale dated 16/10/1974, the plaintiff

purchased the suit schedule property and has been in

possession and enjoyment of the same. The

defendant, who is the son of Ramamma, has

contended that the said Deed of Sale dated

16/10/1974 is a false and created document and no

such deed had been executed in favour of the plaintiff.

That the defendant being in possession of the property

for 60 years and above had perfected the title by way

of adverse possession.

13. The defendant, as rightly pointed out by

the first appellate court has taken confused and

contrary stand in his defence. While on the one hand,

defendant contends that Krishnaiah was the owner of

the subject land and after his death his son Ramaiah

and daughter Ramamma had equally partitioned the

properties in which, the land in Sy.No.35/06

measuring 1 acre 35 guntas had fallen to the share of

Ramamma, who is the mother of the defendant and

that she had became absolute owner thereof, Ramaiah

had no right to convey the said property in favour of

the plaintiff in terms of the deed of sale dated

16.10.1974 as per Ex.P7. On the other hand, he

contends that the said Krishnaiah was in possession of

the schedule property and after his death, his mother

Ramamma and after her demise the defendant in the

capacity of her son succeeded to the property and has

been in peaceful possession uninterruptedly over the

property for 60 years and has thereby perfected his

title by way of adverse possession.

14. Since the defendant is disputing the Deed of

Sale dated 16/10/1974 as per Ex.P7 to be a fabricated

document and he is not accepting the right, title or

interest of the plaintiff over the suit schedule

property, as such, a plea of adverse possession set up

by the defendant having perfected the title adverse to

the interest of the plaintiff cannot be considered.

15. Ex.P7 is a registered deed of sale executed

on 16.10.1974. It is the plaintiff, who has approached

the courts seeking declaration of title based on the

aforesaid Deed of Sale. The said Deed of Sale has not

been challenged or set aside. In that view of the

matter, the claim of the defendant having become

owner of the property in the capacity of coparcener

and simultaneously claimed to have perfected the title

by way of adverse possession cannot be

countenanced. The defendant has not proved and

established his case of the suit schedule property

having fallen to the share of his mother or he having

perfected title by adverse possession. The fact that

defendant was also a signatory as a witness to the

said deed of sale executed by his uncle Ramaiah and

his mother Ramamma, would establish the fact of

effective conveyance of title in favour of the plaintiff.

16. The trial court and the first appellate court

have taken these aspects of the matter and by well

reasoned judgments, have decreed the suit of the

plaintiff declaring him to be the absolute owner of the

suit schedule property in possession and have

justifiably granted the decree of permanent injunction.

No infirmity or illegality can be found and hence no

substantial question of law is involved in this appeal

requiring consideration. In the result, the following:

ORDER

i) Regular Second Appeal No.614/2012

filed by the defendant is dismissed.

ii) The judgment and decree dated

18/10/2010 passed in

OS.No.258/2002 by the trial court

and the judgment and decree dated

14/12/2011 passed in RA.No.53/2010

by the first appellate are confirmed.

Sd/-

JUDGE MKM