B.S. Gangadharaiah vs Smt. Shivamma
2022 Latest Caselaw 600 Kant

                           1


     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 13TH DAY OF JANUARY, 2022

                        BEFORE

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

      REGULAR SECOND APPEAL NO.1588 OF 2013

BETWEEN:

B.S. GANGADHARAIAH
S/O LATE SANNARANGAIAH
AGED 40 YEARS
R/AT BITTUGOUNDANAHALLI
GUBBI TALUK
TUMKUR DISTRICT
REPRESENTED BY HIS
GPA HOLDER SMT M B KEMPAMMA
W/O B S MUNIRANGAIAH
AGED 48 YEARS
VINAYAKA BLOCK, K.R.NAGAR TOWN
MYSORE DISTRICT-571 602
                                         ... APPELLANT

(BY SRI K.G.SADASHIVAIAH, ADVOCATE)

AND:


1.    SMT. SHIVAMMA
      W/O M N KRISHNE GOWDA
      AGED ABOUT 55 YEARS
      R/AT NO 2/226,
      VINAYAKA BADAVANE
      BEHIND TAHSILDAR'S QUARTERS
      K R NAGAR TOWN
      MYSORE DISTRICT 571 602.
                            2



2.   M VENKATARAM
     S/O MARIGOWDA
     AGED ABOUT 55 YEARS
     R/AT HEBBAL VILLAGE
     K R NAGAR TALUK
     MYSORE DISTRICT 571 602.

3.   MAHADEVA
     S/O MARIGOWDA
     AGED ABOUT 53 YEARS
     R/AT HEBBAL VILLAGE
     K R NAGAR TALUK
     MYSORE DISTRICT 571 602.

4.   RAMACHANDRA
     S/O MARIGOWDA
     AGED ABOUT 50 YEARS
     R/AT HEBBAL VILLAGE,
     K R NAGAR TALUK
     MYSORE DISTRICT 571 602.

5.   SMT BALE GOVINDAMMA
     SINCE DEAD BY LRS

5(A) SMT. MANJULA
     W/O SHASHI
     AGED ABOUT 36 YEARS
     R/AT NO 30 12TH CROSS
     NAVILU RASTE A AND B BLOCK
     KUVEMPUNAGAR
     MYSORE 570 023.

5(B) NEELAKANTA
     S/O BALE GOVINDAMMA
     AGED ABOUT 44 YEARS
     R/AT 3RD CROSS
     VINAYAKA BADAVANE
     K R NAGAR,
     MYSORE DISTRICT 571 602
                            3



5(C) SMT TULASI
     W/O JAYARAM
     AGED ABOUT 42 YEARS
     R/AT 3RD CROSS
     VINAYAKA BADAVANE
     K R NAGAR
     MYSORE 571 602.

5(D) UMESHA
     S/O LATE JAYARAM
     AGED ABOUT 21 YEARS
     R/AT 3RD CROSS
     VINAYAKA BADAVANE
     K R NAGAR
     MYSORE DISTRICT 571 602
                                         ...RESPONDENTS
(BY SRI GURUPRASAD B.R. AND SMT. SANDYA RAO P.,
ADVOCATE FOR R1-R4;
R5(B) AND R5(D)-SERVED BUT UNREPRESENTED;
NOTICE TO R5(A) AND R5(C) IS HELD SUFFICIENT.


     THIS APPEAL IS FILED UNDER SECTION 100 OF CODE OF
CIVIL PROCEDURE AGAINST THE JUDGEMENT & DECREE DTD
29.06.2013 PASSED IN R.A.NO.136/2011 ON THE FILE OF II
ADDITIONAL DISTRICT JUDGE, MYSURU DISMISSING THE
APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD
15.02.2011 PASSED IN OS.NO.162/2007 ON THE FILE OF CIVIL
JUDGE (SENIOR DIVISION) AND JMFC, K.R.NAGAR.


     THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
                              4


                        JUDGMENT

The present regular second appeal is filed by the

appellant/plaintiff represented by his power of

attorney holder one Smt. M.B.Kempamma, aggrieved

by the judgment and decree dated 29.06.2013 passed

in R.A.No.136/2011 on the file of the II Additional

District Judge, Mysuru (hereinafter referred to as 'the

First Appellate Court') in and by which, the first

appellate court while dismissing the appeal of the

plaintiff confirmed the judgment and decree dated

15.02.2011 passed in O.S.No.162/2007 on the file of

the Civil Judge (Senior Division) and JMFC at

K.R.Nagar (hereinafter referred to as 'the Trial Court').

2. The appellant/plaintiff filed the above suit

in OS.No.162/2007 against the

respondents/defendants for relief of declaration to

declare him to be the owner of the suit schedule

property being land measuring 6 guntas including

converted land measuring 0.4 1/2 guntas situated in

Sy.No.71/9A1A at Kantenahalli village, K.R.Nagar

Taluk and consequential relief of permanent injunction

restraining the defendants from interfering with the

possession and enjoyment of the same and also a

direction to the defendant No.1 to remove one

Smt.Sharadha inducted by her in the shed within the

suit schedule property.

3. The case of the appellant/plaintiff is that,

he is the absolute owner of 10 guntas of land in

Sy.No.71/9A1A having purchased the same, under a

deed of sale dated 1/05/1992 registered on

15/05/1992. That Smt. M.B.Kempamma, his power of

attorney holder is the wife of his brother who is a

Government servant, working at Periyapattana. That

one Mr.Devadas had filed the suit against said

Smt.M.B.Kempamma before the Civil Judge K.R.Nagar

in OS.No.123/1994 in which the original power of

attorney executed by the appellant/plaintiff in favour

of his attorney has been produced. That since his

power of attorney holder could not go near the land

for many years one person had encroached 4 guntas

of land belonging to the appellant/plaintiff. That the

appellant/plaintiff being desirous of constructing a

house had applied for change of land usage in respect

of remaining land measuring 4 1/2 guntas within 6

guntas which was granted on 25/08/2000. The

respondents/defendants having no manner of right in

the suit schedule property were trying to trespass into

the same by creating false documents in collusion with

Municipal Authority. That a commissioner had been

appointed in OS.No.123/1994 who had submitted a

report reflecting situation and measurement of land in

Sy.No.71/9A1A. That about 15 days prior to filing of

the suit, respondents/defendants tried to trespass into

the suit schedule property and tried to take

possession of the shed constructed by the

appellant/plaintiff on the suit schedule property. The

Police as well as Municipal Authority did not take any

action and hence constraining the appellant/plaintiff to

file the above suit.

4. The respondents/defendants appeared and

defendant No.1, in her written statement while

denying the case of the appellant/plaintiff contended

that she is the absolute owner in possession of the

shed with vacant site measuring 10 x 50 ft situated at

Hospital block, Vinayaka Extension, K.R.Nagar Town

bearing Municipal Khatha and Assessment

No.3992/3832/A having purchased the same from one

B.L.Vishvanatharao and his sons under a deed of sale

dated 01/03/1991 and that she constructed a house

therein in the year 1993 as per licence. The

respondent No.2/defendant No.2 claimed ownership

over the property measuring 37 x 82 ft bearing

Municipal Khatha and Assessment No.3993/3833 on

the premise that the same was purchased by her

grandfather from one Veerasetty under a deed of sale

dated 15/12/1945 and that in the family partition

same was allotted in favour of respondent

No.2/defendant No.2 as his share, as such he is in

possession of the same. The respondent

No.5/defendant No.5 claimed to be the owner in

possession of a house with vacant site measuring 33 x

33 ft having purchased the same from one Honnachari

under a deed of sale dated 18/09/1968 and that he

constructed a Mangalore tiled roof house and has been

living thereon. It is further contended by the

respondents/defendants that husband of power of

attorney holder of the plaintiff (brother of plaintiff)

being the Second Division Surveyor working in a

Government, by misusing his office had fabricated the

documents to knock off the property belonging to the

respondents/defendants. Hence, sought for dismissal

of the suit.

5. The Trial Court based on the pleadings

framed the following issues:

(1). Whether the plaintiff proves that he is the absolute owner in possession of the schedule property?

               (2)    Whether   plaintiff   proves    the
               alleged      interference      by      the
               defendants?


               (3)    Whether the plaintiff proves that

defendant No.1 is in illegal possession of shed within the suit property?

(4) Whether suit is bad for non-

joinder of necessary parties and mis- joinder of parties?

          (5)      Whether   valuation    made       and
          court fee paid is correct?


          (6)      Whether plaintiff is entitled to
          the relief as sought?


          (7)      What order or decree?


     6.   Smt.      M.B.Kempamma,         the       power   of

attorney holder of the appellant/plaintiff examined

herself as P.W.1 and exhibited 16 documents as per

Ex.P1 to Ex.P16. Defendant Nos.1 and 2 examined

themselves as DWs.1 and 2 and exhibited 24

documents as Exs.D1 to D24. On appreciation of

evidence, the Trial Court dismissed the suit of the

appellant/plaintiff by its judgment and decree dated

15/02/2011. Aggrieved by the same,

appellant/plaintiff through his said power of attorney

holder filed regular appeal in RA.No.136/2011 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 / plaintiff has made out a case to interfere with the judgment passed by the trial court?

(2) Whether the plaintiff proves that there is perverse in the order passed by the trial court?

(3) What order?

7. On re-consideration of oral and

documentary evidence, the first appellate court, by its

judgment and decree dated 29/06/2013 dismissed the

appeal of the appellant/plaintiff and confirmed the

judgment and decree passed by the Trial Court. Being

aggrieved with the same, the respondent/plaintiff

through his power of attorney holder is before this

Court in this regular second appeal.

8. Sri Abhijit, learned counsel for the

appellant/plaintiff reiterating the grounds urged in the

appeal memorandum submitted that;

a) That the trial court and the first appellate

court committed grave error in not appreciating the

material evidence produced by the appellant/plaintiff

with regard to his right, title and interest over the suit

schedule property.

b) That the sale deed dated 01/05/1992 and

the revenue documents produced would establish the

title and possession of the appellant/plaintiff over the

suit schedule property.

c) That the trial court and the first appellate

court failed to taking into consideration the fact that

the respondents/defendants claiming to have

purchased portion of property under different deeds of

sale, they have not proved and established their title

over the same. Thus, the same has led to miscarriage

of justice.

d) That the trial court and the first appellate

court did not consider the commissioner report which

was filed in a suit in OS.No.123/1994 at an

undisputed point of time establishing the

encroachment. That had the trial court and the first

appellate court taken the same into consideration the

conclusion would have been otherwise.

e) Thus, he further submits that perverse

appreciation of evidence by the trial court and the first

appellate court has given rise to substantial question

of law requiring consideration. Hence, sought for

allowing the appeal.

9. On the other hand, Sri Guruprasad B.R.,

learned counsel appearing for the

respondents/defendants submits that;

a) That the appellant/plaintiff having gone to

the court seeking relief of declaration and injunction

ought to have established his case on the strength of

the evidence he relied upon.

b) That even as admitted by PW.1 there were

encroachment even prior to filing of the suit, the

appellant/plaintiff except producing sale deed dated

01/05/1992 and subsequent document thereof has

not produced any material evidence with regard to

title, possession and interest of his vendor.

c) That the said area is developed area and

the respondents/defendants having purchased the

property under different deeds of sale as narrated in

the written statement and having been residing

therein by constructing a house by paying tax, as such

they cannot be called as trespassers.

d) That as regards the commissioner report

filed in OS.No.123/1994, the same has no evidentiary

value as the respondents/defendants herein were not

the parties to the said suit. That the said suit was

dismissed for non-prosecution. The appellant/plaintiff

therefore, cannot draw any benefit from the said

commissioner report.

e) That since the matter is only of a factual in

nature no substantial question of law arise in this

appeal for consideration. Hence, sought for dismissal

of the appeal.

10. Heard the learned counsel for the

appellant/plaintiff and respondents/defendants.

11. The appellant/plaintiff claims to have

purchased the suit schedule property under a deed of

sale dated 01/05/1992 originally measuring 10 guntas

forming a part of Sy.No.71/9A1A. As admitted in his

own pleading that an extent of 4 guntas was already

encroached upon by third party and what remains is

only 6 guntas. That even out of said 6 guntas

respondents/defendants are trying to encroach the

portion of property of appellant/plaintiff. It is the case

that out of 6 guntas the appellant/plaintiff applied and

obtained permission for change of land usage to the

extent of 4 1/2 guntas of land. Thus, though the

claim of the appellant/plaintiff to be the owner of 10

guntas of land, but by his own admission he has

restricted his claim only to the extent of 6 guntas of

land. The appellant/plaintiff has not entered the

witness box. The matter has been conducted by his

power of attorney holder, who appears to be sister-in-

law being the wife of his brother who is a Government

employee. The said witness, in her deposition as

extracted by the trial court and the first appellate

court has pleaded and expressed her ignorance with

regard to right, title and interest of the vendor of the

appellant/plaintiff namely, Smt. Siddamma. Though it

is claimed that the property belonged to Smt.

Siddamma, no piece of evidence acceptable in law has

been produced by the appellant/plaintiff. The said

witness has also expressed ignorance with regard to

title to an extent of land in Sy.No.71/9A1A and also

with regard to the division made in respect of said

property. The said witness has unequivocally admitted

that even prior to filing of the suit there existed a

house of the defendant No.1 and that defendant No.1

was residing therein. She has also admitted other

portion of property has been in possession of third

parties and RCC houses are in existence. As noticed

by the first appellate court at paragraphs 23 to 30 of

its judgment, the appellant/plaintiff has failed to prove

the very existence of suit schedule property. Be that

as it may, the fact of the matter is that the

appellant/plaintiff seeking declaration of title has to

establish by producing cogent legal evidence of his

title over the property and also rightful entitlement of

his vendor more particularly when the

respondents/defendants have specifically denied the

title of the appellant/plaintiff and have set up an

independent title in themselves. The

respondents/defendants who have claimed to be in

possession of different portion of land purchased by

them under different deeds of sale dated 01/03/1991,

15/12/1945 and 18/09/1968, it was imperative for the

appellant/plaintiff to have established his title and the

title of his vendor independently without having any

reference to the claim of the respondents/defendants.

The appellant/plaintiff cannot try gain anything from

the defect or otherwise of the title of the

respondents/defendants, this aspect of the matter has

been rightly taken note of by the trial court and the

first appellate court. Though the appellant/plaintiff

has sought relief of declaration and injunction

restraining the respondents/defendants from

interference, the deposition of PW.1 would go to show

that the respondents/defendants were already in

possession of the portion of the suit schedule property

and even this aspect of the matter has also been

taken note of by the trial court and the first appellate

court.

12. On a holistic reading of the pleading and

material evidence, no fault can be found with the

reasoning and finding given by the trial court and the

first appellate court. For the aforesaid reasons and

analysis, no substantial question of law is involved in

this appeal requiring consideration. In the result, the

following.

ORDER

i) Regular Second Appeal No.1558/2013

filed by the appellant/plaintiff is

dismissed.

      ii)   The   judgment        and   decree    dated

            15/02/2011              passed           in

            OS.No.162/2007 by the trial court

            and the judgment and decree dated

            29/06/2013              passed           in

RA.No.136/2011 by the first appellate

are confirmed.

Sd/-

JUDGE

Mkm