Vaddara Hanumathappa vs Ulavathi Shankramma
2022 Latest Caselaw 7889 Kant

             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH

           DATED THIS THE 01st DAY OF JUNE, 2022

                          BEFORE

           THE HON'BLE MR. JUSTICE E.S. INDIRESH

       REGULAR SECOND APPEAL NO.1209 OF 2007

BETWEEN:

VADDAR HANAMANTAPA
SIDE DECEASED BY HIS LR

1(A) SMT. SHIVAGANGAMMA
     D/O VADDAR HANAMANTAPPA
     AGE MAJOR
     OCC: HOUSEHOLD WORK
     R/O VALLABHAPURA VILLAGE
     TALUK: HAGARIBOMMANAHALLI
     DISTRICT: BALLARI
                                              ...APPELLANT

(BY SRI S N BANAKAR, ADVOCATE)

AND:

ULAVATTI SHANKRAMMA
W/O HANAMANTAPPA
SICE DEADED BY CLASS 2 LEGAL HEIR

1(A) SMT. RENUKAMMA
     W/O BASAPPA
     AGE 40 YEARS
     OCC: HOUSEHOLD WORK
     R/O CHITRAPALLI
     TALUK: HAGARAIBOMMANAHALLI
                                  2




      DISTRICT: BALLARI
                                                    ...RESPONDENT
(BY SRI S.L. MATTI, ADVOCATE)

     THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 READ WITH ORDER XLII RUL 1 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 22.02.2007 PASSED IN RA
NO.36OF 2005 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE
(SR. DN.) AND JMFC, HOSPET, ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGMENT AND DECREE DATED 11.2.2005
PASSED IN ORIGINAL SUIT NO.114 OF 2000 ON THE FILE OF
THE CIVIL JUDGE (JR. DN.) AND JMFC, H.B. HALLI.

     THIS REGULAR SECOND APPEAL COMING ON FOR FINAL
HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                         JUDGMENT

This Regular Second appeal is filed by the plaintiff,

challenging the judgment and decree dated 22nd February, 2007

on the file of the Principal Civil Judge, (Sr. Dn.) and JMFC,

Hospet in RA No.36 of 2005, setting aside the judgment and

decree dated 11th February, 2005 passed in Original Suit no.114

of 2000 by the Civil Judge (Jr.Dn.), Hagaribommanahalli,

Hospet, decreeing the suit of the plaintiff.

2. For the sake of convenience, the parties herein are

referred to with their rank and status before the trial Court.

3. The relevant facts for adjudication of this appeal are

that, the plaintiff averred the land bearing survey No.151A/2,

measuring 4.45 acres of Chitrapalli was purchased by the

plaintiff through a registered sale deed dated 27th December,

1974 from one Mariyappa. It is further stated that after the

execution of the aforesaid sale deed, plaintiff is in possession

and enjoyment of the suit schedule property. It is further stated

in the plaint that the vendor of the plaintiff (Mariyappa)

purchased the suit schedule property along with other property

at the Court auction on the file of the Munsiff Court, Hadagli and

was in possession of the property and as such, the plaintiff is in

peaceful possession of the land bearing Survey No.151A/2

measuring 4.45 acres. It is further stated that the land

belonging to the defendant is situated towards northern side of

the suit schedule property and as the defendant has encroached

upon an area of 1.62 cents in the suit schedule property, the

plaintiff has filed Original Suit No.114 of 2000 seeking relief of

declaration and mesne profits.

4. On service of notice, defendant entered appearance

and filed detailed written statement denying the averments

made in the plaint. It is the specific defence of the defendant

that the suit schedule property purchased by the plaintiff from

his vendor-Mariyappa is not 4.45 acres, but only 2.20 acres and

therefore, as the vendor of the plaintiff himself was the owner to

an extent of 2.20 acres of land, he cannot convey the better title

than what he got from the Court auction and therefore, sought

for dismissal of the suit. Based on the pleadings on record, the

trial Court has framed issues for its consideration. In order to

establish their case, plaintiff has examined 4 witnesses as PW1

to PW4 and marked 12 documents as Exhibits P1 to P12.

Defendant has examined four witnesses as DW1 to DW4 and

produced 8 documents and same were marked as Exhibits D1 to

D8. The trial Court, after considering the material on record, by

its judgment and decree dated 11th February, 2005, decreed the

suit and being aggrieved by the same, defendant has preferred

appeal in RA.No.36 of 2005 before the First Appellate Court and

the said appeal was resisted by the plaintiff. The First Appellate

Court, after re-appreciating the material on record, by its

judgment and decree dated 22nd February, 2007 allowed the

appeal, consequently, set aside the judgment and decree dated

11th February, 2005 in Original Suit No.114 of 2000 passed by

the trial Court. Feeling aggrieved by the same, plaintiff has

presented this second appeal.

5. I have heard Shri S.N. Banakar, learned counsel

appearing for the appellant and Shri S.L. Matti, learned counsel

appearing for the respondent.

6. This Court, by order dated 25th February, 2009,

admitted the appeal and formulated following substantial

questions of law:

i) Whether the Lower Appellate Court was justified in reversing the judgment and decree passed by the trial Court by holding that the vendor of the plaintiff had not acquired title to the property when the vendor of the plaintiff had purchased the property in an auction conducted by the Court and the said proceedings of the Court has attained finality?

ii) Whether the Lower Appellate Court has not properly appreciated the evidence available on record and as such whether its finding and conclusion admits of perversity?

7. Sri S.N. Banakar, learned counsel appearing for the

appellant, contended that the First Appellate Court has not

appreciated the sale deed dated 27th December, 1974 wherein

the plaintiff has purchased in an extent of 4.45 acres in Survey

No.151A/2. He further contended that the First Appellate Court

has not properly appreciated the revenue records produced by

the plaintiff and therefore, the impugned judgment and decree

passed by the First Appellate Court requires interference in this

appeal.

8. Per contra, Shri S.L. Matti, learned counsel appearing

for the respondent sought to support the finding recorded by the

First Appellate Court. It is the submission of Sri Matti that the

plaintiff has failed to prove before the Court that he had acquired

title over the entire land in an extent of 4.45 acres and in this

regard, he invited the attention of the Court to Exhibit D2 and

submitted that survey No.151A/2 is totally measuring 2.20 acres

and not 4.45 acres and therefore, the finding recorded by the

First Appellate Court is just and proper and does not call for

interference in this appeal.

9. In the light of the submission made by the learned

counsel appearing for the parties, I have given anxious

consideration to the facts on record and perused the original

documents. The core question to be answered with regard to

the substantial question of law raised in this appeal relates to

the fact whether the vendor of the plaintiff (Mariyappa) had

acquired the property to an extent of 4.45 acres or not. In this

regard, I have carefully examined the finding recorded by the

trial Court. The trial Court, based on the extent shown at

registered sale deed dated 27th December, 1974 executed by

Mariyappa in favour of the plaintiff in an extent of 4.45 acres, so

also, the extent reflected in the record of rights, has arrived at a

conclusion that the plaintiff has proved his case and accordingly

answered issue No.1 in favour of the plaintiff. It is not in dispute

that the plaintiff has filed Original Suit No.361 of 1998 before the

Civil Court, seeking injunctive relief against the defendant and

the written statement was filed by the defendant and in

furtherance of the same, the plaintiff withdrew the suit with the

permission of the trial Court to file fresh suit as per the order

dated 28th March, 2000. The trial Court, emphasising more on

the unregistered sale deed dated 16th April, 1942 executed by

Hulugappa in favour of the husband of the defendant, has

arrived at the conclusion that the extent of land in survey

No.151A/2 is measuring 1.84 cents. However, careful

consideration of the boundaries mentioned in Exhibit D2 as well

as the finding recorded by the First Appellate Court would

indicate that the vendor of the plaintiff-Mariyappa has purchased

the land bearing survey No.151A/2 to an extent of 4.45 acres.

It is also forthcoming from the records that the land in question

was mortgaged in favour of one T. Shivappa. However, the

parent document to be considered to ascertain the actual extent

of the land is the sale deed executed by the original owner of the

property in question-Ganji Hulugappa, in favour of

Haledahanumanthappa, wherein as per the documents referred

to at Exhibits D2 and D3 would clearly establish the fact that an

extent of 2.20 acres of land was originally belonging to Ganji

Hulugappa and he has transferred the same in favour of

Haledahanumanthappa and at the time of the Court auction

conducted by the Civil Court, inadvertently it was shown as 4.45

acres and thereafter, the same was continued in the sale deed

dated 27th December, 1974 (Exhibit P1). The said mistake crept

in the actual extent of the land was properly appreciated by the

First Appellate Court in its judgment and decree, particularly, at

paragraph 18 of the judgment, wherein the First Appellate Court

rightly come to the conclusion that the vendor of the plaintiff

(Mariyappa) had not acquired the title over the entire extent of

land to an extent of 4.45 acres and the said finding recorded by

the First Appellate Court is based on the material on record and

re-appreciating the documents produced by both the parties, the

First Appellate Court, rightly come to the conclusion with regard

to the fact that the plaintiff is not the owner of the entire land in

an extent of 4.45 acres in survey No.151A/2 and the said finding

recorded by the First Appellate Court is just and proper and does

not call for interference in this appeal. That apart, the sale deed

dated 23rd October, 1942 (Exhibit D2) executed by Ganji

Hulugappa in favour of Haledahanumanthappa, reflects that the

extent of land in survey No.151A/2 is 2.20 acres and the

schedule to the said extent shows the name of the defendant.

In that view of the matter, I am of the view that the substantial

questions of law framed by this Court favours the defendant and

the First Appellate Court was justified in reversing the judgment

and decree passed by the trial Court by holding that the vendor

of the plaintiff had not acquired title to the property, when the

vendor of the plaintiff had purchased the property in an auction

conducted by the Court and therefore, the First Appellate Court

has properly re-appreciated the evidence available on record in

the right perspective and arrived at a just conclusion that the

trial Court has committed an error in appreciating the material

on record. It is also well established principle that in a suit of

declaration, the onus lies on the plaintiff to prove the title as

required Section 101 of Evidence Act and in the case on hand,

the plaintiff failed to prove that he is the owner in possession of

land to an extent of 4.45 acres. Therefore, in the absence of

cogent material to prove that the vendor of the plaintiff had not

acquired total extent of 4.45 acres as contended by the plaintiff,

I am of the view that the First Appellate Court has rightly

interfered with the judgment and decree passed by the trial

Court. In the result, appeal fails, accordingly, dismissed.

Sd/-

JUDGE

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