Karnataka High Court
P Ramasanjeevaiah vs Sri Dasappa on 22 February, 2022
Bench: M.G.S. Kamal
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE M.G.S.KAMAL
REGULAR SECOND APPEAL NO.89 OF 2011
C/W
REGULAR SECOND APPEAL NO.90 OF 2011
IN R.S.A.NO.89/2011
BETWEEN:
MARIYAPPA DEAD BY LRS.
1. SMT. RANGAMMA,
D/O MARIYAPPA,
W/O VENKATARAMU,
AGED ABOUT 43 YEARS,
R/O "SRINIVASA NILAYA",
OPP. TO GOVERNMENT SCHOOL,
HESARAGHATTA,
BANGALORE - 560 068.
2. SMT.RAJAMMA @ KEMPA RANAMMA,
D/O MARIYAPPA,
W/O KARISHNAPPA,
AGED ABOUT 33 YEARS,
R/O B.H.PALYA,
DIBBUR POST,
TUMKUR - 563 138.
... APPELLANTS
(BY SMT. NALINA, ADVOCATE)
2
AND:
1. SRI.DASAPPA,
S/O HANUMANTHAIAH,
AGED ABOUT 66 YEARS,
R/O H.B.PALYA,
HAMLET OF DIBBUR,
KASABA HOBLI,
TUMKUR - 563 138.
2. SRI.RAMAKRISHNAIAH,
S/O HANUMANTHAIAH,
AGED ABOUT 61 YEARS,
R/O H.B.PALYA,
HAMLET OF DIBBUR,
KASABA HOBLI,
TUMKUR - 563 138.
3. SRI.GANGANNA,
S/O PAPAIAH,
AGED ABOUT 71 YEARS,
R/O H.B.PALYA,
HAMLET OF DIBBUR,
KASABA HOBLI,
TUMKUR - 563 138.
4. SRI.PUTTAIAH,
S/O HANUMANTHAIAH,
AGED ABOUT 63 YEARS,
R/O H.B.PALYA,
HAMLET OF DIBBUR,
KASABA HOBLI,
TUMKUR - 563 138.
5. P.RAMASANJEEVAIAH,
S/O LATE PUTTAIAH,
AGED ABOUT 61 YEARS,
R/AT "PAVANAGANGA",
VI CROSS, ASHOK NAGAR,
3
OPP. TO GOVERNMENT COLLEGE,
TUMKUR - 563 138.
...RESPONDENTS
(BY SRI.RAVI H.K., ADVOCATE FOR
SRI.H.KANTHARAJ, ADVOCATE FOR R1 AND R2;
SRI.B.C.AVINASH, ADVOCATE FOR
SRI.V.RAVIPRAKASH, ADVOCATE FOR R5;
R3 AND R4 SERVED)
THIS APPEAL IS FILED UNDER SECTION 100 OF
CODE OF CIVIL PROCEDURE AGAINST THE JUDGMENT
& DECREE DATED 20.09.2010 PASSED IN
R.A.NO.287/2009 ON THE FILE OF THE PRESIDING
OFFICER, FAST TRACK COURT - II, TUMKUR,
DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 23.12.2006 PASSED IN
O.S.NO.99/1997 ON THE FILE OF THE PRL. CIVIL
JUDGE (JR.DN) TUMKUR.
IN R.S.A.NO.90/2011
BETWEEN:
P.RAMASANJEEVAIAH,
S/O LATE PUTTAIAH,
AGED ABOUT 62 YEARS,
R/O "PAVANAGANGA",
VI CROSS, ASHOK NAGAR,
OPP: TO GOVERNMENT COLLEGE,
TUMKUR - 572 101.
... APPELLANT
(BY SRI.B.C.AVINASH, ADVOCATE FOR
SRI.V.RAVIPRAKASH, ADVOCATE)
AND:
1. SRI.DASAPPA,
S/O HANUMANTHAIAH,
4
AGED ABOUT 67 YEARS,
R/O H.B.PALYA,
HAMLET OF DIBBUR,
KASABA HOBLI,
TUMKUR - 563 138.
2. SRI.RAMAKRISHNAIAH,
S/O HANUMANTHAIAH,
AGED ABOUT 62 YEARS,
R/O H.B.PALYA,
HAMLET OF DIBBUR,
KASABA HOBLI,
TUMKUR - 563 138.
3. MARIYAPPA DEAD BY LRS.
(a) SMT. RANGAMMA,
D/O MARIYAPPA,
W/O VENKATARAMU,
AGED ABOUT 44 YEARS,
R/O "SRINIVASA NILAYA",
OPP. TO GOVERNMENT SCHOOL,
HESARAGHATTA,
BANGALORE - 560 068.
(b) SMT.RAJAMMA @
KEMPA RANAMMA,
D/O MARIYAPPA,
W/O KARISHNAPPA,
AGED ABOUT 34 YEARS,
R/O H.B.PALYA,
HAMLET OF DIBBUR,
KASABA HOBLI,
TUMKUR - 572 101.
4. SRI.GANGANNA,
S/O PAPAIAH,
AGED ABOUT 77 YEARS,
R/O H.B.PALYA,
HAMLET OF DIBBUR,
KASABA HOBLI,
5
TUMKUR - 572 101.
5. SRI.PUTTAIAH,
S/O HANUMANTHAIAH,
AGED ABOUT 52 YEARS,
R/O H.B.PALYA,
HAMLET OF DIBBUR,
KASABA HOBLI,
TUMKUR - 572 101.
...RESPONDENTS
(BY SRI.RAVI H.K., ADVOCATE FOR
SRI.H.KANTHARAJ, ADVOCATE FOR R1 AND R2;
R4 SERVED; R5 SERVED)
THIS APPEAL IS FILED UNDER SECTION 100 OF
CODE OF CIVIL PROCEDURE AGAINST THE JUDGMENT
& DECREE DATED 20.09.2010 PASSED IN
R.A.NO.473/2009 (OLD NO.11/2007) ON THE FILE OF
THE PRESIDING OFFICER, FAST TRACK COURT - II,
TUMKUR, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT AND DECREE DATED 23.12.2006
PASSED IN O.S.NO.99/1997 ON THE FILE OF THE PRL.
CIVIL JUDGE (JR.DN) TUMKUR.
THESE APPEALS COMING ON FOR ADMISSION
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Regular Second Appeal No.89/2011 is filed by
the legal representatives of defendant No.1 while
Regular Second Appeal No.90/2011 is filed by
defendant Nos.2, 3 and 4 aggrieved by the common
judgment and decree dated 20/09/2010 passed in
R.A.No.287/2009 and R.A.No.473/2009 respectively
on the file of the FTC-II, Tumkur (hereinafter
referred to as 'the first appellate court'), dismissing
the appeals and confirming the judgment and
decree dated 23/10/2006 passed in OS.No.99/1997
on the file of the Principal Civil Judge (Junior
Division), Tumkur (hereinafter referred to as 'the
trial court).
2. The parties are referred to as per their
original rankings before the trial court.
3. Dasappa and Ramakrishnaiah, both sons
of Hanumanthaiah are the plaintiffs before the trial
court. They filed the above suit in OS.No.99/1997
before the trial court for declaration to declare them
as the absolute owners in possession and
enjoyment of the land bearing Sy.No.39/6
measuring 24 guntas situated at Dibbur, Kasaba
Hobli, Tumkur Taluk, including a Farm House and
20 coconut trees (hereinafter referred to as 'suit
schedule property') and for consequential relief of
permanent injunction on the premise that the
plaintiffs purchased the suit schedule property in
terms of a deed of sale dated 22/11/1976 from one
Smt. Mayamma, the wife of late D.Shamanna. That
ever since the date of purchase the plaintiffs have
been in possession and enjoyment of the suit
schedule property. That the khatha in respect of
the suit schedule property stood in the name of
plaintiff No.1. That the defendants without having
any right over the suit schedule property tried to
interfere with the peaceful possession and
enjoyment of the plaintiffs which constrained the
plaintiffs to file the above suit.
4. The defendants filed written statement
disputing the boundaries of the suit schedule
property. It is contended that the boundaries given
in the suit schedule property do not pertain to land
bearing Sy.No.39/6, but it pertains to land bearing
Sy.No.39/7. It is further contended that the land
bearing Survey No.39 measuring 9 acres 27 guntas
had been divided into 9 phodes, i.e., 39/1, 2, 3, 4,
5A, 5B, 5C, 6 and 7. That at the time of purchase
of the above property by the plaintiffs and
defendants, the survey numbers were incorrectly
mentioned. However, measurements and
boundaries are correctly given in their respective
deeds of sale. That in the deed of sale dated
20/05/1957 registered in favour of defendant No.2,
Survey number has been incorrectly mentioned as
39/4 instead of 39/6. However, the measurement
and boundaries are correctly mentioned. That in
the deed of sale dated 22/11/1976, survey number
is mentioned as 39/6 instead of 39/7. That the
defendants noticed the discrepancies in the survey
numbers and filed application before the court of
Tahsildar in Case No.RRT (Dis) 76/96-97. That the
Taluka Surveyor inspected the spot, measured the
boundaries of the respective portions in possession
and enjoyment of the plaintiffs and defendants and
submitted a report as to the actual physical
possession of the portions of properties belonging
to plaintiffs and the defendants. The defendants
have further given details of their respective
portions of land. It is further contended that the
plaintiffs taking undue advantage of the wrong
mentioning of phodi numbers entered in their deed
of sale with an ulterior motive of knocking off the
properties belonging to the defendants have filed
the suit. Hence, sought for dismissal of the suit.
5. The Trial Court based on the pleadings
framed the following issues:
(1) Whether the plaintiffs prove
that they are the absolute owners
in possession and enjoyment of the
suit schedule property by virtue of
the sale deed dated 22.11.1976?
(2) Whether the plaintiffs further
prove that the defendants have
attempted to interfere with the
plaintiff's peaceful possession and
enjoyment of the suit schedule
property with intention to oust the
plaintiff from the same?
(3) Whether the defendants
prove that the plaintiffs have
furnished false particulars about
the suit schedule property?
(4) Whether the defendants
prove that the plaintiffs have
undervalued the property and the
suit is not maintainable?
(5) What order or decree the
parties are entitled to?
6. The plaintiff No.2 examined himself as
PW.1, besides examining three witnesses as PWs.2
to 4 and exhibited 29 documents as Ex.P1 to
Ex.P29. On the other hand, defendant No.4
examined himself as DW.1 and exhibited 31
documents as Exs.D1 to D31. Defendant No.3 has
been examined as DW.2 and exhibited 4 documents
as Exs.D32 to 36. Defendant No.1 has been
examined as DW.3 and exhibited documents at
Exs.D37 to D39 and also examined another witness
and Taluka Surveyor as DWs.4 and 5 respectively
and exhibited 5 documents as per Exs.D.40 to D44.
7. On appreciation of evidence, the Trial
Court, by its judgment and decree dated
23/12/2006 decreed the suit of the plaintiffs.
Aggrieved by the same, the legal representatives of
defendant No.1 filed regular appeal in
RA.No.287/2009 and defendant Nos.2, 3 and 4 filed
regular appeal in RA.No.473/2009 respectively
before the first appellate court.
8. Considering the grounds urged in the
appeal memo, the First Appellate Court framed the
following common points for its consideration.
(1) Whether the appellants in
RA.287/2009 & 473/2009 prove
that the trial court has erred in
dismissing the suit in O.S.No.99/97
on the file of the Prl. Civil Judge
(Jr.Dn.) Tumkur, on 23-12-2006 is
liable to be set aside?
(2) Whether the appellants in
RA.287/2009 and 473/2009 prove
that the trial court has erred in
dismissing the suit in O.S.No.99/97
on the file of the Prl.Civil Judge
(Jr.Dn.) Tumkur on 23-12-206 is
erroneous, illegal, perverse and
against the facts on record, thereby
the interference of this court is
required?
(3) What order?
9. On re-appreciation of oral and
documentary evidence, the first appellate court, by
its judgment and decree dated 20/09/2010 had
dismissed the said appeals confirming the judgment
and decree passed by the Trial Court. Being
aggrieved with the same, the legal representatives
of defendant No.1 and defendant Nos.2 to 4 are
before this Court by way of aforesaid regular
second appeals.
10. Learned counsel for the appellants
reiterating the grounds urged in the appeal
memorandum submitted;
(i) That the trial court and the first
appellate court grossly erred in
decreeing the suit without appreciating
the case of the defendants.
(ii) That the plaintiffs are in actual
possession and enjoyment of land
bearing Sy.No.39/7 and not in
Sy.No.39/6. Though in the deed of sale
dated 22/11/1976 Survey No.39/6 is
mentioned, the land actually conveyed
was Sy.No.39/7. Thus, the defendants
have been in possession of land in
Sy.No.39/6 though in their deed of sale
dated 20/05/1957 survey number is
incorrectly mentioned as 39/4 instead of
39/6.
(iii) That the plaintiffs having
approached the court ought to have
proved what was conveyed to them
under the deed of sale dated 22/11/1976
was land bearing Sy.No.39/6 and not
Sy.No.39/7.
(iv) That the courts below failed to
taking into consideration the survey
sketch and the commissioner report
which reveal that the plaintiffs failed to
establish that they have been in
possession of land bearing Sy.No.39/6.
That since the sale deed dated
20/05/1957 under which the defendants
are claiming right is prior in time, the
courts below ought to have preferred the
said sale deed to the sale deed dated
22/11/1976 under which the plaintiffs
claimed their right.
(v) That the non-appreciation of
material evidence and the statements of
witnesses produced by the defendants
by the courts below has resulted in mis-
carriage of justice giving rise to
substantial question of law. Hence,
sought for allowing of the appeals.
11. Learned counsel appearing for the
plaintiffs justifying the judgment and decree passed
in the aforesaid regular appeals submits that the
deed of sale dated 22/11/1976 under which the
plaintiffs claimed their right and in possession has
not been disputed though the defendants claimed
their right under deed of sale dated 20/05/1957
and claimed to be in the knowledge of wrong
mentioning of the survey numbers have taken no
action except filing an application before the
Tahsildar. The deed of sale dated 22/11/1976
being a registered document not having been
challenged, no substantial question of law arises in
these appeals for consideration. Hence, sought for
dismissal of the appeals.
12. Heard the learned counsel for the
parties. Perused the records.
13. It is not in dispute that the plaintiffs
purchased the suit schedule property in terms of
deed of sale dated 22/11/1976. The documents
produced by the plaintiffs, namely, the revenue
records correspond with the survey number
mentioned in the deed of sale. It is the case of the
defendants that in the deeds of sale under which
plaintiffs and defendants purchased the land, the
survey numbers have been incorrectly mentioned.
That in the deed of sale dated 22/11/1976 relied
upon by the plaintiffs, Survey No.39/6 is mentioned
instead of Sy.No.39/7 and in the deed of sale dated
20/05/1957 under which defendant No.2 is
claiming, survey number of the land is incorrectly
shown as 39/4 instead of 39/6.
14. Even according to the defendants, when
they are aware of incorrect mentioning of the
survey numbers of lands in the aforesaid deeds of
sale, they have neither taken any steps to rectify
the purported defect in mentioning the survey
number nor have they given any justification for
their inaction all these years. Merely stating that
the suit schedule property mentioned in the sale
deed dated 22/11/1976 under which the plaintiffs
are claiming their title and possession is different
from the property which is actual subject matter of
the sale deed would not be sufficient to disentitle
the plaintiffs from the relief of declaration and
possession. Admittedly, the deed of sale dated
22/11/1976 under which the plaintiffs purchased
the property is still valid and subsisting. The
revenue records produced by the plaintiffs and the
description of the property entered therein
corresponds with the sale deed dated 22/11/1976.
Thus, as rightly taken note of by the trial court and
the first appellate court, the plaintiffs have
established their right, title and interest over the
suit schedule property by producing registered deed
of sale and revenue records regarding their physical
possession and enjoyment thereof.
15. On the contrary, defendants though
claimed the properties subject matter of the said
sale deed is bearing Survey No.39/7 and not 39/6
have not produced any acceptable cogent evidence
in this regard and have admittedly not taken any
steps in accordance with law seeking rectification of
the same. The trial court and the first appellate
court, in the absence of any material evidence
produced by the defendants in justification of their
case, have rightly decreed the suit of the plaintiffs.
16. In the circumstances, the reasoning and
conclusion arrived at by the courts below cannot be
found fault with and as such, no substantial
question of law would arise in these matters
requiring consideration. In the result, the
following:
ORDER
i) Regular Second Appeals
No.89/2011 and 90/2011 filed by
the legal representatives of the
defendant No.1 and defendant
Nos.2 to 4 respectively are
dismissed.
ii) The judgment and decree dated
23/12/2006 passed in
OS.No.99/1997 by the trial court
and the judgment and decree dated
20/09/2010 passed in
RA.Nos.287/2009 and 473/2009
are confirmed.
Sd/-
JUDGE
MKM
