Karnataka High Court
P.B.Umadevi vs Smt. Girijamma on 22 June, 2022
Bench: Ravi V Hosmani
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RSA No. 1040 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
REGULAR SECOND APPEAL NO. 1040 OF 2020 (DEC/INJ)
BETWEEN:
P.B.UMADEVI
W/O CHANNAPPA,
AGE 56 YEARS,
OCC HOUSE WIFE AND AGRICULTURIST,
R/O NEELAKANTESHWARA EXTENSION,
CHITRADURGA-577501.
...APPELLANT
[BY SRI SPOORTHY HEGDE NAGARAJA, ADVOCATE (PH)]
AND:
1. SMT. GIRIJAMMA
W/O TORIYAPPA,
R/O JIDDI, NEAR ESHWARA TEMPLE
JAGALUR, DAVANAGERE DIST-577528
2. SMT BASAMMA
W/O LATE P BASAPPA
AGED 64 YEARS
Digitally signed OCC HOUSE WIFE
by VEENA
KUMARI B
Location: High 3. SRI VIRUPAKSHA
Court of
Karnataka S/O LATE P BASAPPA
AGED 16 YEARS, SINCE MINOR,
REP. BY HIS MOTHER AND
NATURAL GUARDIAN RESPONDENT NO.2,
SMT BASAMMA
BOTH RESPONDENT NOs.2 & 3 ARE
R/O NEAR SANTHEPETE GOVT SCHOOL
INDIRA NAGARA, JAGALUR
DAVANAGERE DIST-577528.
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RSA No. 1040 of 2020
4. SMT UMADEVI
W/O LATE P B MANJUNATHA,
AGED: 61 YEARS, OCC: HOUSE WIFE
5. SRI P M MAHESH
S/O LATE P B MANJUNATHA
AGED 39 YEARS
BOTH RESPONDENT NOs.4 & 5 ARE
R/O KALLESHWARA KHANAVALI
DODDAPETE
CHITRADURGA-577501.
6. SMT P M ANJALI
W/O VIJAYAKUMAR,
D/O LATE P B MANJUNATHA
AGED 32 YEARS
R/O NO.545/63
MAHESHWARA LAYOUT
NITUVALI
DAVANAGERE-577 501.
7. SMT JAYASHEELA
D/O P B THIPPESWAMY
AGED 57 YEARS
8. SMT P T MEGHANNA
D/O LATE P B THIPPESWAMY,
AGED 29 YEARS
9. SRI P T SHANTHAKUMARA
S/O LATE P B THIPPESWAMY
AGED 27 YEARS
ALL ARE ADDRESS BUSINESS
R/O: NALANDA COLLEGE ROAD
J D LAYOUT, JAGALUR
DAVANAGERE DIST-577 528.
10. SRI P B BASAARAJU
S/O LATE BASAPPA
AGED 55 YEARS, BUSINESS
R/O NALANDA COLLEGE ROAD
J D LAYOUT, JAGALUR
DAVANAGERE DIST-577 528.
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RSA No. 1040 of 2020
11. SMT VIJAYA K
W/O LATE P B KOTRESH
AGED: 47 YEARS, HOUSE WIFE
12. P K POOJA
D/O LATE P B KOTRESH
AGED 21 YEARS
13. SRI P B DINESH
S/O P BASAPPA
AGED 49 YEARS, BUSINESS
R/O 15301/13,
2ND FLOOR,
2ND CROSS,
NEAR MOUNDESHWAR TEMPLE,
2ND MAIN, VIJAYANAGAR,
MARENAHALLI,
BENGALURU-560040.
14. P K VARUNA
S/o P B KOTRESH
AGED ABOUT 19 YEARS
RESPONDENT NOs.(11) TO (14) ARE
R/o 15301/13, 2ND FLOOR,
2ND CROSS, NEAR MOUNDESHWAR TEMPLE,
2ND MAIN, VIJAYANAGAR,
MARENAHALLI, BENGALURU 560040.
...RESPONDENTS
THIS R.S.A IS FILED UNDER SECTION 100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 29.11.2019 PASSED IN
R.A.NO.96/2018 ON THE FILE OF THE INTINERARY SENIOR CIVIL
JUDGE, JAGALUR, ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGMENT AND DECREE DATED 23.06.2018 PASSED IN
O.S.NO.33/2011 ON THE FILE OF THE CIVIL JUDGE AND JMFC.,
JAGALUR.
THIS RSA COMING ON FOR ADMISSION THIS DAY, COURT
DELIVERED THE FOLLOWING:
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RSA No. 1040 of 2020
JUDGMENT
Challenging judgment and decree dated 29.11.2019
passed by itinerary Senior Civil Judge, Jagalur in
R.A.No.96/2018 setting aside judgment and decree dated
23.06.2018 passed in O.S.no.33/2011 by Civil Judge and
JMFC., Jagalur.
this appeal is filed.
2. Appellant herein was plaintiff in original suit and
respondent no.1 in first appeal. Whereas, respondent no.1
herein was defendant no.2 in original suit and appellant in
first appeal. During pendency of suit, defendant no.1
P. Basappa died. Respondents no.2 to 14 herein are legal
representatives of deceased defendant no.1 brought on
record as defendants no.1(a) to 1(m) in suit and
respondents no.2(a) to 2(m) in first appeal. For sake of
convenience parties shall herein after be referred to as per
their ranks in original suit.
3. O.S. No.33/2011 was filed seeking for
declaration as owner of agricultural land bearing
RSA No. 1040 of 2020
Sy.No.140/2B measuring 04 acres situated at Jagalur
('suit property' for short) and for consequential relief of
permanent injunction restraining defendant no.2 from
interfering with plaintiff's lawful possession and enjoyment
of suit property.
4. In plaint, it was claimed that suit property was
allotted to her share under registered partition deed dated
08.03.2002 taken between herself and her father. Since
partition she was in possession and enjoyment of same. It
was stated that defendant no.2, who was not concerned
with her family, claimed to have purchased suit property
from defendant no.1. Due to same, she was unsuccessful
in getting her name mutated in revenue records. Alleging
that defendant no.1 taking undue advantage of his name
appearing in record of rights executed registered sale deed
dated 01.01.2009 in favour of defendant no.2 which was
not binding on her. Immediately upon coming to know
about sale, plaintiff filed suit. It was alleged that
defendant no.2 was not a bonafide purchaser.
RSA No. 1040 of 2020
5. On service of summons, defendant no.1 entered
appearance and filed written statement admitting his
relationship with plaintiff, but denying execution of
partition deed on 08.03.2002. He admitted sale in favour
of defendant no.2 and stated that defendant no.2 was in
possession of suit property from date of purchase and had
also got his name mutated in revenue records. It was
further stated that suit property was his self-acquired
property purchased by him under registered sale deed
dated 01.08.1957 totally measuring 07 acres 01 gunta.
Out of same, he had executed gift deed in favour of his
wife Basamma to an extent of 05 acres 01 gunta under
registered gift deed dated 28.01.2006. Said Basamma had
sold 05 acres 01 gunta to defendant no.2. It was also
stated that suit filed after lapse of several years was only
with intention to harass him. It was also stated that
P.B. Dinesh, who was his son and brother of plaintiff had
filed O.S.No.7/2011 against husband of defendant no.2
with an intention to grab suit property and said suit was
RSA No. 1040 of 2020
pending. Colluding with her brother, plaintiff had filed
present suit.
6. Defendant no.2 filed separate written statement
denying plaintiff's claim of partition dated 08.03.2002 and
plaintiff's claim to be in possession and enjoyment of suit
property. It was stated that defendant no.1 who was an
electrical contractor had purchased suit properties under
registered sale deed dated 01.08.1957 to extent of 07
acres 01 gunta out of his own income. Therefore, it was
his self-acquired property and plaintiff did not have any
right or claim in respect of same.
7. Based on pleadings trial Court framed following
issues:
1. Whether the plaintiff proves that he is
the owner of the suit schedule
property?
2. Whether the plaintiff further proves
the alleged interference by the
defendants?
3. Whether the plaintiff further proves
that the registered sale deed dated
RSA No. 1040 of 2020
01.01.2009 executed by defendant
No.1 in favour of defendant No.1 is
null and void?
8. Thereafter, plaintiff examined herself as PW.1,
her brother as PW.2 and another witness as PW.3. Exhibits
P.1 to P.5 were marked. On behalf of defendants,
defendant no.1(a) was examined as DW.1, Defendant no.2
as DW.2 and exhibits D.1 to D.4 were marked. On
consideration trial Court answered issues no.1 to 3 in
affirmative and issue no.4 by decreeing suit.
9. Aggrieved thereby, defendant no.2 preferred
appeal in R.A.No.96/2018 on several grounds. It was
contended that impugned judgment was perverse, illegal,
capricious and one sided. It was also contended that
reasons assigned were erroneous and there was failure to
consider oral and documentary evidence in judicious
manner. A specific contention about admission of
defendant no.2 being in possession of suit property as on
date of suit was also urged.
RSA No. 1040 of 2020
10. Based on contentions first appellate Court
framed following points for consideration.
1. Whether the appellant is proves that the
trial court without considering the oral
and documentary evidence and the
provision of law in a prospective manner
has come to the wrong conclusion?
2. Whether the appellant is proves that the
judgment and decree passed by the
court below is perverse, capricious,
illegal and one sided and the
interference of this appellate court is
necessary?
3. What order?
11. Upon re-examination of oral and documentary
evidence and grounds urged, first appellate Court
answered points no.1 and 2 in affirmative and point no.3
by allowing appeal, setting aside judgment and decree
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RSA No. 1040 of 2020
passed by trial Court and dismissing suit. Assailing said
judgment, this regular second appeal is filed.
12. Sri. Spoorthy N. Hegade, learned counsel for
appellant submitted that impugned judgment and decree
passed by first appellate Court was contrary to law, facts
of case and evidence on record. It was submitted that
defendant no.1 Basappa purchased suit property totally
measuring 07 acres and 01 gunta out of which he had
partioned 05 acres and 01 gunta to his son P.B. Dinesh on
10.08.2000 and remaining extent of 02 acres in favour of
plaintiff under another partition deed dated 08.03.2002,
which remained unchallenged. Therefore, first appellate
Court was not justified in holding that these partition
deeds were not binding. It was further contended
conclusion of first appellate Court that title follows
possession was contrary to law. It was also contended
finding that suit was not maintainable was also erroneous
and called for interference. Learned counsel proposed
following substantial questions of law for consideration:
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RSA No. 1040 of 2020
"1. Whether finding of first appellate Court that
defendant no.1 was in possession of suit
property was contrary to evidence and
warranted interference?
2. Whether first appellate Court was justified
in holding that plaintiff's suit for declaration
without seeking consequential relief of
possession was not maintainable?"
13. Heard learned counsel; perused impugned
judgment and decree and records.
14. Admittedly, relief sought for by plaintiff in suit
was for declaration of his title in respect of suit property
and for permanent injunction restraining defendant no.2
from interfering with peaceful possession. While trial Court
decreed suit, first appellate Court recorded categorical
finding that PW-1 and 2 admitted in their cross-
examination about defendant being in possession of suit
property by virtue of sale deed executed by defendant
no.1 in favour of defendant no.2. It also recorded
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RSA No. 1040 of 2020
categorical finding that plaintiff admitted suit property to
be self-acquired property of defendant no.1.
15. Hon'ble Supreme Court in the case of Akkamma
and Others v. Vemavathi and Others reported in 2021 SCC
OnLine SC 1146 held that, a bare suit for declaration without
seeking consequential relief would not be maintainable.
16. In view of admission of plaintiff as well as her
brother - PW.2 that defendant no.2 was in possession of
suit property in pursuance of sale deed executed by
defendant no.1, suit for declaration of title and for
injunction against interference would not be maintainable
without seeking consequential relief of possession. Further
finding about defendant no.2 being in possession is based
on evidence viz., Ex.D.1 - sale deed, mutation records,
land revenue payment receipts Exs.D.2 to D.4 and
admission of PWs.1 and 2, finding cannot be said to be
without evidence or contrary. Likewise, in view of settled
legal position, dismissal of bare suit for declaration without
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RSA No. 1040 of 2020
consequential relief cannot be said to be either perverse or
capricious.
Therefore, no substantial question of law arises for
consideration. Hence, I pass following:
ORDER
Appeal is dismissed.
Consequently I.A.No.1/2021 is also dismissed.
Sd/-
JUDGE
BVK
