Karnataka High Court
Smt Ningamma vs Sri Muddamallaiah on 8 June, 2022
Bench: Ravi V Hosmani
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RSA No. 1272 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 08TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
REGULAR SECOND APPEAL NO. 1272 OF 2020 (INJ)
BETWEEN:
SMT. NINGAMMA
W/O D.DEVARAJU
AGED ABOUT 66 YEARS
R/O THIBBEGOWDANADODDI
HALLIMALA DAKALE
KASABA HOBLI
RAMANAGARA TALUK-562 128
RAMANAGARA DISTRICT.
...APPELLANT
[BY SRI NAVEEN REDDY M.V., ADVOCATE FOR
SRI SANDEEP R., ADVOCATE (PH)]
AND:
SRI MUDDAMALLAIAH
S/O LATE BASAPPA
AGED ABOUT 59 YEARS
RESIDING AT IJOOR
Digitally signed by RAMANAGARA TOWN-562 159
VEENA KUMARI B
Location: High
RAMANAGARA DISTRICT.
Court of Karnataka
...RESPONDENT
THIS RSA FILED UNDER SEC.100 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 07.02.2020 PASSED IN R.A.NO.178
/2019 ON THE FILE OF THE III ADDITIONAL DISTRICT AND
SESSIONS JUDGE, RAMANAGARA, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 20.12.2018
PASSED IN O.S.NO.364/2016 ON THE FILE OF THE ADDITIONAL
CIVIL JUDGE, RAMANAGARA.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, COURT
DELIVERED THE FOLLOWING:
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RSA No. 1272 of 2020
JUDGMENT
Challenging judgment and decree dated 07.02.2020
passed by III Additional District and Sessions Judge,
Ramanagara in R.A.No.178/2019 and judgment and decree
dated 20.12.2018 passed by Additional Civil Judge and JMFC,
Ramanagara in O.S.No.364/2016, this appeal is filed.
2. Appellant herein was plaintiff in original suit and
appellant in first appeal; while respondent herein was
defendant in original suit and respondent in first appeal. For
sake of convenience parties hereinafter be referred to as per
their ranks before trial Court.
3. Plaintiff filed O.S.No.364/2016 seeking for relief of
permanent injunction against interference with plaintiffs
peaceful possession and enjoyment of property bearing
municipal khata old no.298, new No.384/1738/1314,
measuring East to West 35 feet and North to South 80 feet,
situated at Ward No.3, Gandhi Nagara, Ramanagara Town,
Ramanagara District, (hereinafter known as 'suit property'.)
RSA No. 1272 of 2020
4. It was stated that suit property was purchased by
plaintiff's husband under sale deed dated 18.09.1971 from his
vendor K. Narasimaiah. Thereafter, he gifted it to plaintiff
under gift deed dated 04.02.2015. Thus, she become absolute
owner in possession and revenue records were mutated in her
name. Though, defendant did not have any right, title or
interest over suit property, there was threat of dispossession
from him. Hence, she filed suit.
5. Upon appearance, defendant filed written statement
admitting K.Narasimaiah was earlier owner of suit property,
and its purchase by plaintiff's husband on 18.09.1971, but,
denied execution of gift deed in favour of plaintiff. He
contended that much prior to date of gift, defendant had
purchased suit property from plaintiff's husband. Thereafter, he
executed registered Gift deed in favour of his son - M.
Jagadeesh, who was in possession and enjoyment of same.
6. Based on pleadings, trial Court framed following
issues:
1. Whether the plaintiff proves that he is in
lawful possession over the suit schedule
property?
RSA No. 1272 of 2020
2. Whether the plaintiff further proves that
there is an unlawful interference by the
defendant over the suit schedule
property?
3. Whether the plaintiff is entitled for the
relief as prayed for?
4. To what Decree or Order?
7. Thereafter plaintiff got herself examined as PW.1.
Exhibits P.1 to P.7 were marked. While defendant was
examined as DW.1 and Exhibits D.1 to D.11 were marked.
8. On consideration, trial Court answered issues no.1 to
3 in negative; and issue no.4 by dismissing suit. Aggrieved by
same plaintiff filed R.A.No.178/2019 on several grounds. Along
with appeal plaintiff has also filed an I.A. under Order XLI rule
27 of CPC for leading additional evidence.
9. Considering grounds urged, first appellate Court
framed following points for its consideration:
1. Does the plaintiff-appellant prove and
establish that the trial court has not
appreciated the materials placed before it
more particularly the Revenue documents
adduced by the plaintiff in 'P' series and
thereby the trial court has passed an
erroneous judgment?
RSA No. 1272 of 2020
2. Does the defendant-respondent entitle to
adduce the proposed document of certified
copy of compromise petition filed in the
proceedings of OS NO.21/1984 which was
pending for disposal between Meravegowda,
the brother-in-law of plaintiff, and Devaraju
and another?
3. Does the plaintiff-appellant prove and
establish that there is sufficient scope for
this court to interfere with the impugned
judgment and to set aside the same besides
granting perpetual injunction to be granted
u/s 38 of Specific Relief Act?
4. What Order?
10. On re-examination, first appellate Court answered
points no.1 to 3 in negative and dismissed appeal. Against
concurrent findings, plaintiff is in appeal.
11. Sri M.V. Naveen Reddy, learned counsel for
appellant submitted that trial Court as well as first appellate
Court erred in not considering evidence on record in proper
perspective and on perverse findings dismissed suit. It was
contended that though, defendant denied plaintiff's title over
suit property and set up his own title under a registered Sale
deed, he failed to produce original sale deed before Court.
Except making vague statement that original sale deed was in
possession of plaintiff's husband, there was no acceptable
RSA No. 1272 of 2020
explanation regarding its custody. Under such circumstances,
trial Court as well as first appellate Court were not justified in
denying relief to plaintiff. It was further contended that
defendant also failed to produce khata certificate to
corroborate his title and possession. Despite same, trial Court
dismissed suit, while first appellate Court also dismissed
appeal.
12. In light of above submissions, learned counsel
proposed following substantial questions of law for
consideration:
"1. Whether trial Court and first appellate
Court were justified in holding that
plaintiff was not in possession of suit
schedule property as on date of filing of
the suit?
2. Whether trial Court and first appellate
Court were justified in holding that
defendant was put in possession of suit
schedule property by husband of plaintiff
under disputed sale deed?
3. Whether findings given thereto in
impugned judgment and decrees by trial
Court and first appellate Court was in
conformity with settled principles of law
and in conformity with evidence on
record?."
RSA No. 1272 of 2020
13. Heard learned counsel, perused impugned judgment
and decree and record.
14. From above submission, it is not in dispute that
Sri K. Narasimaiah was original owner of suit property and that
plaintiff's husband - D. Devaraju purchased it from him under
sale deed dated 18.09.1971. But, while plaintiff claims
ownership and possession over suit property under gift deed
executed by her husband; whereas defendant claims that
plaintiff's husband executed sale deed in his favour and
thereafter he executed registered gift deed in favour of his son,
who was in possession and enjoyment of suit property.
15. Admittedly, suit property is a vacant site. In order to
establish her title and possession over suit property, plaintiff
produced gift deed dated 04.02.2015 and certified copy of sale
deed dated 18.09.1971 as Exs.P.1 and P.2; Exs.P.3 to P.7 are
encumbrance certificate from 1971 to 1973, tax assessments
and tax paid receipts. On other hand, defendant produced self
assessment property tax form no.3 for 2015-2016 as Exs.D1
and D.2. Certified copy of sale deed as Ex.D.3 and gift deed as
Ex.D.4. He also produced encumbrance certificate from
RSA No. 1272 of 2020
23.12.2003 to 09.11.2015 as Ex.D.5, tax paid receipt as
Ex.D.6, Encumbrance certificates from 01.04.1989 to
23.12.2003, Form no.7, tax challans and receipts etc., as
Exs.D.8 to D.11.
16. Trial Court observed that both plaintiff and defendant
were claiming title under deeds executed by plaintiff's husband.
Plaintiff's claim was in respect of gift deed dated 04.02.2015;
whereas defendant's claim is in respect of registered sale deed
of 1984. It took note of deposition of PW.1, wherein she stated
that instruction for drafting of plaint was given by her husband.
It also observed that plaintiff cross-examined defendant, but
failed to elicit anything contrary to his case. As plaintiff's
husband had already alienated suit property in favour of
defendant, he had no right to execute gift deed in favour of
plaintiff during 2015. It also observed that Ex.D.3 - sale deed
contained recitals about possession being delivered to
purchaser. Hence, it answered issues against plaintiff and
dismissed suit.
17. On re-appreciation of evidence placed on record and
on consideration of I.A. for additional evidence, first appellate
RSA No. 1272 of 2020
Court was of view that copy of compromise decree in
O.S.No.21/1984 was not necessary for proper disposal of
appeal and plaintiff failed to establish any of necessary
ingredients for invocation of Order XLI rule 27 of CPC and while
rejecting application proceeded to dismiss appeal. It also refer
to Section 38 of Specific Relief Act, which mandated that
person seeking relief thereunder must have subsisting right in
his favour and threat to same by opponent. It observed that as
defendant obtained title over suit property under Ex.D.3
executed on 04.01.1984 from plaintiff's husband, he had no
right to gift same in favour of his wife thereafter.
18. Though learned counsel sought to contend that
rejection of application for additional evidence and failure to
draw adverse inference for non-production of original sale deed
by defendant as being erroneous, both Courts have rightly
appreciated fact that vendor of plaintiff as well as defendant
was same person namely, plaintiff's husband. Whereas, sale
deed executed by plaintiff's husband in favour of defendant
Ex.D.3 was of year 1984, gift deed executed by plaintiff's
husband in favour of plaintiff Ex.P.1 is dated 04.02.2015.
Therefore, as on date of execution of Ex.P.1 - gift deed,
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RSA No. 1272 of 2020
plaintiff's husband was not having subsisting title in respect of
suit property. Such being case, non-production of original sale
deed by defendant cannot be a material omission.
19. Further suit property being vacant site and
defendant specifically claiming title over it under Ex.D.3 - sale
deed and also being in possession thereof as averred in sale
deed, it was incumbent upon plaintiff to have sought
declaration of his title. In any case, question of title was
required to have been gone into and burden of proving valid
acquisition of title over suit property would lie on plaintiff as
held by Hon'ble Supreme Court in Anathula Vs. P Buchi
Reddy (dead) by L.Rs., and Others, reported in (2008) 4
SCC 594. On appreciation of evidence on record, both Courts
have concurrently held that plaintiff failed to establish her title,
possession and also interference by defendant. Said findings
are neither perverse nor capricious.
20. Contentions urged at best suggest errors being
committed by Courts, which are not substantial in nature.
Hon'ble Supreme Court in Hardial Singh Vs. Balbir Kaur
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RSA No. 1272 of 2020
and Another reported in 2022 SCC Online SC 311 has
held that even gross errors cannot be interfered with in second
appeal under Section 100 of CPC.
In view of above discussions, no substantial questions of
law arise for consideration. Hence, I pass following:,
ORDER
Appeal is dismissed.
Sd/-
JUDGE
Psg*
