Sri K S Ananda vs V N Devaraj
2022 Latest Caselaw 529 Kant

                           1




     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 12TH DAY OF JANUARY 2022

                        BEFORE

          THE HON'BLE MR.JUSTICE M G S KAMAL

         REGULAR SECOND APPEAL NO. 1073/2014

BETWEEN:

1.     SRI. K.S. ANANDA
       S/O. K.N. SOME GOWDA
       AGED ABOUT 61 YEARS

2.     SRI. K.A. SOMASHEKAR
       S/O. SRI. K.S. ANANDA
       AGED ABOUT 39 YEARS

3.     SRI. K.A. RAGHU
       S/O. SRI. K.S. ANANDA
       AGED ABOUT 33 YEARS

       ALL ARE RESIDENTS OF KUGUR VILLAGE
       GOWDHALLI, SHANIVARSANTHE HOBLI
       SOMWARPET TALUK
       KODAGU DISTRICT-571 236.      ..APPELLANTS

(BY SRI SHARATH GOWDA G.B, ADV.)

AND:

V.N. DEVARAJ
S/O. SRI. K.S. NINGAPPA
AGED ABOUT 42 YEARS
RESIDENT OF KUGUR VILLAGE
GOWDHALLI, SHANIVARSANTHE HOBLI
SOMWARPET TALUK
KODAGU DISTRICT-571 236.        ..RESPONDENT
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(BY SRI GIRISH BALADARE, ADV.)

      THIS APPEAL IS FILED UNDER SECTION 100 OF THE
CODE OF CIVIL PROCEDURE AGAINST THE JUDGMENT
AND     DECREE    DATED    26.04.2014  PASSED    IN
R.A.NO.20/2013 ON THE FILE OF THE I ADDITIONAL
DISTRICT JUDGE, KODAGU, MADIKERI, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 21.11.2012 PASSED IN O.S.NO.45/2006 ON THE
FILE OF SENIOR CIVIL JUDGE, MADIKERI.

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

                          JUDGMENT

This Regular Second Appeal is filed by the

appellants/plaintiffs being aggrieved by the judgment and

decree dated 26.04.2014 passed in Regular Appeal

No.20/2013 on the file of the I Additional District Judge,

Kodagu, Madikeri (Hereinafter referred to as First Appellate

Court) in and by which the First Appellate Court while

dismissing the appeal filed by the appellants/plaintiffs

confirmed the judgment and decree dated: 21.11.2012

passed in O.S.No.45/2006 on the file of the Senior Civil

Judge, Madikeri (Hereinafter referred to as Trial Court) and

the said suit was filed by the appellants/plaintiffs seeking

for a relief of declaration and cancellation of the deed of

sale dated 25.04.2001.

2. The case of the appellants/plaintiffs is that the

land bearing Sy No.129/1 measuring 5.51 acres situated at

Kugur Village, Gowdhalli, Shanivarsanthe, Somwarpet

Taluk along with other properties was owned by K.N.Some

Gowda - father of the appellant No.1/plaintiff No.1 and

grand father of the appellant Nos.2 and 3/plaintiffs No.2

and 3 along with his cousins Puttaswamy Gowda and

Lakkegowda. Out of the said 5.51 acres, all family

members had jointly sold an extent of 1.30 acres to one

Appaiah Shetty. That there was oral partition amongst the

said K.N.Some Gowda and his cousins in terms of which

remaining 4.21 acres in Sy.No.129/1 along with other

properties were allotted to the share of K.N.Some Gowda.

Thus, he became the absolute owner of the said property.

The said K.N.Some Gowda had six children and plaintiff

No.1 is the eldest amongst all the children. That there was

another oral partition between K.N.Some Gowda and

aforesaid six children in terms of the land measuring 4.21

in Sy No.129/1 was allotted to the share of plaintiff No.1

along with other properties. Thus, plaintiff No.1 became

the absolute owner in possession and enjoyment of the

said property. That plaintiff No.1 has been paying the

revenue to the Government. That except the plaintiff,

none has any right, title or interest over the suit schedule

property. On 15.01.2006, the defendant along with his

men trespassed into an area of 4.21 acres of land in Sy.

No.129/1 and encroached upon an area of 1.25 acres out

of 4.21 acres of land in Sy No.129/1. It is this 1.25 acres

out of 4.21 acres of land in Sy.No.129/1 which is the

subject matter of the present suit. That the plaintiff

complained the illegal act of the defendant to the local

police. The defendant who appeared before the local

police informed that he had purchased the suit property in

terms of deed of sale dated 25.04.2001 from one Smt

Gowramma and her children K P Raju and K P Krishnappa.

There upon, since the matter is of civil nature, the plaintiff

was relegated to the Civil Court. Hence, the plaintiff filed

the suit for declaration and cancellation of the aforesaid

deed of sale dated 25.04.2001 executed by Smt

Gowramma and her children K P Raju and K P Krishnappa

in favour of the defendant herein conveying the suit

schedule property.

3. Upon service of summons, the defendant

appeared and filed written statement denying the plaint

averments and specifically contended that he had

purchased the suit schedule property from Smt

Gowramma, K P Raju and K P Krishnappa, the wife and

sons respectively of Puttaswamy Gowda in terms of the

sale deed dated: 25.04.2011 and ever since then he was in

possession, occupation and enjoyment of the suit schedule

property as absolute owner thereof. That the suit schedule

property was allotted to the share of Puttaswamy Gowda

at the earliest point of time in a partition which had taken

place in the family and he was in possession and

enjoyment of the same during his life time and after his

demise, the same devolved to his legal representatives

namely Gowramma, K.P.Raju and K.P.Krishnappa. That

they have been in continuous possession of the same as

absolute owners. It is specifically contended that plaintiff

No.1 has also affixed his signature to the deed of sale as a

witness and thus, the plaintiffs had full and complete

knowledge of the execution of the deed of sale dated:

25.04.2001 by one Smt Gowramma and others. That the

entire sale consideration was paid to the vendor.

Plaintiffs/appellants are residing together under a common

roof and common mess. After execution of register deed

of sale the revenue records have been mutated in his

name and he has invested huge amount of his life savings

for improvement and cultivation of the suit schedule

property. The schedule property was covered by proper

fencing and has coffee plants and that upon his application

for change of katha, the Tahasildar had forwarded the

same to the concerned revenue authorities attached to

Taluk Office at Somwarpet and the revenue authorities had

published notice in Form No.21 as required under the

Karnataka Land Revenue Act 1964. Since, there was no

objection within 30 days, the revenue authorities

completed all the formalities required under law by

mutating the name of the defendant. The plaintiff who had

knowledge of the sale deed had no right, title or interest

over the suit schedule property and if at all was aggrieved,

ought to have challenged the validity or otherwise of the

deed of sale within the period of limitation. That the

present suit which is filed belatedly, is only to harass the

defendant. Hence, sought for dismissal of the suit.

4. Trial Court based on the pleadings framed the

following issues:-

1 Whether the plaintiffs prove that they are the absolute owners of the suit schedule property?

2. Whether the plaintiffs prove that sale deed dated: 25.04.2001 is illegal and created document?

3. Whether the plaintiffs prove that possession of the defendant over these properties is illegal?

4. Whether the defendant proves that the 1st plaintiff is one of the witness of the sale deed and signatory to if, hence he is having knowledge about sale deed?

5. Whether the defendant proves that after death of Puttaswamy Gowda the properties in question devolved upon his wife Gowramma and sons K.P.Raju, K.P.Krishnappa and he continued to be in possession and enjoyment of the same as absolute owner?

6. Whether the suit is not properly valued and Court-feet is paid insufficiently?

7. Whether the suit is barred by limitation?

8. Whether the suit is bad for non-joinder of necessary party?

9. Whether the plaintiff is entitled for the reliefs as prayed for?

Recorded the evidence. Plaintiff No.2 who is the son of

plaintiff No.1 examined himself as PW-1 and got marked

25 documents as Ex.P1 to Ex.P25. On the other hand the

defendant in support of his contentions got examined four

witnesses as DW-1 to DW-4 and got marked 14 documents

as Ex.D1 to Ex.D14. The Trial Court on appreciation of the

evidence of the parties passed the judgment and decree on

21.11.2012 dismissing the suit. Being aggrieved by the

same, the appellants/plaintiffs filed an appeal before the

First Appellate Court.

5. The First Appellate Court after considering the

grounds urged in the memorandum of the appeal, framed

the following points for consideration as under :-

Point No.1 : Whether the appellants/ plaintiffs have shown to the satisfaction of this Court that, the judgment and Decree of dismissal of the suit in O.S.No.45/2006 on 21.11.2012 passed by the Trial Court is erroneous, not sustainable in law and liable to be set aside?

Point No.2 : Whether the appellants/ plaintiffs have shown to the satisfaction of this

Court that the interference of this Court in the judgment and decree of dismissal of the above said suit in O.S.No.45/2006 passed by the Trial Court is necessary?

Point No.3 : What order?

6. On re-appreciation of documentary and oral

evidence, the First Appellate Court dismissed the appeal by

confirming the judgment and decree passed by the Trial

Court. Being aggrieved by the same, the

appellants/plaintiffs are before this Court.

7. Sri. Dharmesh, learned counsel for the appellants

re-iterating the grounds urged in the memorandum of

appeal, submitted that the suit schedule property being

part of 4 acres 21 cents in Sy No.129/1 had been duly

allotted to the share of K.N.Some Gowda in an oral

partition which had been entered into between K.N.Some

Gowda and his cousins Puttaswamy Gowda and

Lakkegowda. He further submits that there is no

document evidencing said oral partitions except Jamabandi

at Ex.P5 of the year 2000. He further submits that

subsequently there was another oral partition amongst

K.N.Some Gowda and his six sons including appellant

No.1/plaintiff No.1 herein in terms of which the aforesaid 4

acres 21 cents of land was allotted to exclusive share of

the appellant No.1/plaintiff No.1 herein. However, there is

no documentary evidence even in that regard. He submits

that the Trial Court and the First Appellate Court have

grossly erred in not adverting to these aspects of the

matter and have erroneously dismissed the suit merely

taking into consideration the contents of the sale deed at

Ex.P1/D1 without taking into consideration the Jamabandi

at Ex.P5 of the year 2000. Thus, he submits that the Trial

Court and First Appellate Court have erred in not

appreciating the material evidence resulting in perversity

in passing the judgment and decree. He submits that, the

deed of sale dated: 25.04.2001 executed by the wife and

children of Puttaswamy Gowda in favour of defendant No.1

is without any authority, as such the same is not legal and

valid requiring the same to be cancelled. Thus he submits

that substantial question of law involves in the matter

requiring consideration in favour of the

appellants/plaintiffs.

8. Sri. Girish Baladare, learned counsel for the

respondent submits that the Trial Court and First Appellate

Court have considered the oral and documentary evidence

and in concurrence with each other have come to the

conclusion that the appellants/plaintiffs have failed to

establish oral partition in claiming their right over the suit

schedule property. He further submits that plaintiff No.1 is

witness to the sale deed dated: 25.04.2001 at Ex.P4/D1

which fact has been not disputed or disproved by the

appellants/plaintiffs. Drawing attention of this Court to

para No.19 of the judgment of the First Appellate Court

wherein the recital of the sale deed at Ex.P4/D1 has been

extracted, he submits that the said document being a

registered document to which the plaintiff was a signatory

as a witness is over-whelming and in the absence of any

cogent and acceptable evidence produced by the plaintiff,

no question of law involves in the matter and seeks for

dismissal of the appeal.

9. Heard learned counsel for both the parties.

10. The fact that the deed of sale dated: 25.04.2001

executed and registered by Gowramma, K.P.Raju and

K.P.Krishnappa being the legal heirs of Puttaswamy Gowda

conveying the suit schedule property in favour of

defendant No.1 to which plaintiff No.1-K.S.Ananda has

been the signatory as a witness, is well established. The

said sale deed is executed in the year 2001 and the

challenge to the sale deed by way of a suit is in the year

2006. Factum of plaintiff No.1 being the signatory to the

deed of sale at Ex.D1 as a witness has been categorically

pleaded by the defendant in his written statement. Thus

the plaintiff No.1 had sufficient knowledge/notice of the

said fact. Despite the same, plaintiff No.1 has neither

disputed, controverted nor led any evidence by entering

into the witness box disproving his signature on the said

document. Plaintiff No.2 who examined himself as PW-1 is

the son of plaintiff No.1, to a specific question in the cross-

examination with regard to signature of Plaintiff No.1 on

the deed of sale has neither denied nor admitted.

However, he says that the name which is mentioned

therein is that of the plaintiff No.1. This crucial aspect of

the matter has been well taken note of by the Trial Court

and the First Appellate Court with regard to the knowledge

of appellant No.1/plaintiff No.1 in execution of deed of

sale dated: 25.04.2001 by Gowramma and two others in

favour of defendant No.1 conveying the schedule property.

11. As regards the factum of oral partition,

appellants/plaintiffs have not produced any independent

evidence except Jamabandi. However, in the sale deed to

which plaintiff No.1 was a signatory as a witness,

categorically records that schedule property was the

ancestral property having been allotted to the share of

Puttaswamy Gowda, the husband and father respectively

of the vendors therein and was in their possession for over

50 years and that they have absolute right to convey the

property. This recital in the sale deed coupled with the

fact that appellant No.1/plaintiff No.1 has signed as a

witness to the said document, probablises the case of

defendant No.1 that schedule property has been allotted to

the share of Puttaswamy Gowda. Plaintiffs have not led

any tenable and cogent evidence to disprove the aforesaid

factual aspect of the matter.

12. On holistic reading of the pleading, evidence

and the reasoning given by the Trial Court and the First

Appellate Court, this Court is of the considered opinion

that no substantial question of law arises for consideration

in this appeal requiring consideration. Hence, the

following:

ORDER

Regular Second Appeal 1073/2014 is dismissed.

The judgment and decree dated 26.04.2014 passed by the

I Additional District Judge, Kodagu, Madikeri in Regular

Appeal No.20/2013 and the judgment and decree dated:

21.11.2012 passed by Senior Civil Judge, Madikeri in

O.S.No.45/2006 is confirmed.

In the circumstances, parties to bear their own costs.

Sd/-

JUDGE

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