G Achachaiah Setty vs Smt Susheelamma
2022 Latest Caselaw 589 Kant

                          1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 13TH DAY OF JANUARY, 2022

                       BEFORE

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

         R.S.A.No.813 OF 2021 (DEC/POS)

BETWEEN:

1.     G.ACHACHAIAH SETTY
       S/O KRISHNAIAH SETTEE
       AGED ABOUT 60 YEARS

2.     SAVITHRAMMA
       W/O ACHAIAH SETTY
       AGED ABOUT 55 YEARS

       BOTH THE APPELLANTS ARE
       R/A. MARUTHI FLOOR MILL
       RANGANATHA NAGARA
       HARISCHANDRA GHAT
       HULIYAR ROAD, HIRIYUR TOWN
       CHITRADURGA DISTRICT-577 599
                                        ... APPELLANTS

       (BY SRI.CHANDRASHEKAR M, ADV.)

AND:

SMT.SUSHEELAMMA
W/O MALLIKARJUNAPPA
AGED ABOUT 63 YEARS
R/A. RAMAMANDIRA CIRCLE
GOPALPURA EXTENTION
HIRIYUR TOWN
                                2
CHITRADURGA DISTRICT-577 599
                                         ... RESPONDENT

(BY SRI.G.BALAKRISHNA SHASTRY, ADV.,)

     THIS APPEAL IS FILED UNDER SEC.100 OF CPC
AGAISNT THE JUDGMENT AND DECREE DATED 17.07.2021
PASSED IN RA NO.14/2018 ON THE FILE OF THE CIVIL
JUDGE (SR.DN.) AND JMFC., HIRIYUR CHITRADURGA,
DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 30.01.2018 PASSED IN
OS NO.201/2014 ON THE FILE OF THE ADDITIONAL CIVIL
JUDGE, HIRIYUR.

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

                       JUDGMENT

1. This is a second appeal by the defendant Nos.1 and 2.

2. Admittedly, defendant No.1 is the brother of the

plaintiff - Smt.Susheelamma and defendant No. 2 is the

wife of the defendant No. 1.

3. Smt.Susheelamma filed a suit seeking for possession

of the suit property which was a house bearing No.97.

She stated that the said house had been allotted to her by

the Karnataka Slum Board by receiving the first installment

of Rs.4,000/- and she had thereafter paid the entire

consideration to the Slum Board and the last installment

was paid on 13.03.2013. She stated that she had installed

a flour mill in the schedule property and since her younger

brother ie., defendant No.1 was not well off, he had

requested her to permit him to run the flour mill and she

had agreed and had allowed defendant No.1 to run the

floor mill.

4. However, she stated that without her consent, her

brother had got the electricity connection in his name and

contended that he was entitled to be in possession. She

stated that she had infact filed a suit against her in

OS No.132/2010 seeking for decree of injunction and in

the said suit she was restrained from evicting her brother

except in a manner known to law and they had therefore,

filed the suit seeking for possession.

5. Smt.Susheelamma's brother and her sister-in-law

entered appearance and contested the suit. Defendant

No.1 admitted that Smt.Susheelamma was his sister. He

however, took up a plea that the Karnataka Slum

Clearance Board has allotted the house bearing No.97 in

favour of his wife, defendant No.2, and his wife had paid

up-to-date installments. He stated that they had installed

the flour mill and were running the flour mill after

obtaining financial assistance from State Bank of Mysuru

and BESCOM authorities had also sanctioned power in the

name of defendant No.1. It was stated that the

defendants were in possession and running the flour mill

and the plaintiff had no right to claim possession.

6. The trial Court after considering the evidence adduced,

recorded a finding that Smt.Susheelamma had proved that

she was the absolute owner of the suit schedule property

and the said property had been allotted to her by the Slum

Board. The trial Court also recorded a finding that her

brother and her sister-in-law were running the flour mill in

the suit property with her consent. The trial Court

ultimately held that the plaintiff, by virtue of being the

owner of the suit property was entitled for both the prayer

of declaration and possession.

7. Being aggrieved, Smt.Susheelamma's brother and

sister-in-law preferred the regular appeal.

8. The appellate Court affirmed the findings of the trial

Court and dismissed the appeal.

9. It is against this concurrent finding, the present

second appeal is filed.

10. Smt.Susheelamma put forth the case that the house

property was allotted by the Slum Board in her favour.

She also produced documents evidencing the allotment

and subsequent execution of the sale deed in her favour by

the Slum Board.

11. The brother of Smt.Susheelamma and her sister-in-

law, on the other hand, put forth the plea that the Slum

Board had in fact allotted the suit property ie., house

bearing No.97 in favour of defendant No.2 ie., her sister-

in-law. In fact a plea was raised that the up-to-date

installments pursuant to the allotment was paid by her

sister-in-law to the Slum Board.

12. It is therefore, clear that both the parties claim the

property through the Slum Board. The plaintiff proved

that she had been allotted the house by production of the

very sale deed which has been executed after the suit has

been instituted and pursuant to the allotment made in the

year 1995.

13. The defendants, on the other hand, during the course

of adducing their oral evidence, sought to introduce an

altogether new plea that the suit house was allotted to

them by means of a Hakku Patra by the Town Municipal

Council. This evidence adduced was in direct contravention

of the plea raised by them in the written statement that

the property was allotted to defendant No.2 by the Slum

Board.

14. Both the Courts have recorded a clear finding of fact

that the suit house was allotted by the Slum Board in

favour of the plaintiff and it was the plaintiff who had paid

all the installments which had resulted in execution of the

sale deed in her favour. In the light of this concurrent

fining and having regard to the specific plea taken by the

defendants, that the property belonged to the Slum Board,

there is absolutely no infirmity in the judgment and decree

passed by the Courts below.

15. Learned counsel for the appellant, however, sought

to rely upon certain documents which were enclosed along

with the application filed under Order 41 Rule 27 of CPC.

All the documents produced along with the application

relate to the notice issued by Town Municipal Council and

the Hakku Patra issued in respect of the adjoining site and

the lay-out plan formed by the Town Municipal Council.

16. As stated above, the specific and categorical plea of

the defendants was that the suit house was the property of

the Slum Clearance Board and the Slum Clearance Board

had allotted the house to defendant No.2 and she had

in turn paid all the installments to the Slum Board.

17. In the light of the specific and categorical plea of the

defendants that the house property was allotted by the

Slum Board, the documents now sought to be produced

claiming title over the suit house through the the Town

Municipal Council would be of no relevance at all.

Therefore, I.A.No.1/2021 is rejected.

18. There is also no question of law, much less, a

substantial question of law arising for consideration in this

appeal. Consequently, this second appeal is dismissed.

Sd/-

JUDGE

GH