Sri Varadaraju vs Bhagyamma
2022 Latest Caselaw 4955 Kant

                           1


     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 17TH DAY OF MARCH, 2022

                       BEFORE

           THE HON'BLE MR.JUSTICE R.NATARAJ

 REGULAR SECOND APPEAL NO.3022 OF 2007 (DEC/INJ)

BETWEEN:

SRI. VARADARAJU
SON OF CHIKKANNA,
AGED ABOUT 51 YEARS,
OCCUPATION: BARBER,
RESIDING AT BEHIND
JYOTHIR MAHESHWARA TEMPLE,
SRIRANGAPATNA TALUK,
MANDYA DISTRICT-580032.
                                          ...APPELLANT
(BY SRI. ADITYA BHAT, ADVOCATE FOR
    SRI. G.S.BHAT, ADVOCATE)

AND:

1.     BHAGYAMMA
       WIFE OF LATE HUTCHAIAH
       AGED ABOUT 66 YEARS,
       OCCUPATION: HOUSEHOLD WORK,
       RESIDING AT BEHIND
       JYOTHIR MAHESHWARA TEMPLE,
       SRIRANGAPATNA TALUK,
       MANDYA DISTRICT-580032.

2.     GOVINDARAJU
       SON OF LATE HUTCHAIAH
       AGE: 40 YEARS
       OCCUPATION: BARBER,
       RESIDING AT BEHIND
       JYOTHIR MAHESHWARA TEMPLE,
       SRIRANGAPATNA TALUK,
                              2


       MANDYA DISTRICT-580032.
       SINCE DECEASED BY LRS

2(a)   SINDHU SHREE
       D/O GOVINDARAJU
       AGED ABOUT 21 YEARS

2(b)   SATHYARAJU G.,
       S/O GOVINDARAJU
       AGED ABOUT 19 YEARS

       BOTH ARE R/AT BEHIND            Amended as per
       JYOTHIR MAHESHWARA TEMPLE,      Court order dated
       SRIRANGAPATNA,                  17.04.2021.
       MANDYA DISTRICT.

2(c)   VIDYA SHREE
       D/O. GOVINDARAJU
       AGED ABOUT 24 YEARS
       R/AT NO.48, NADAHALLI,
       GRAMANTHARA BEEDI,
       ALAHALLI, MYSORE.

3.     NAGARATHNAMMA
       DAUGHTER OF LATE HUTCHAIAH
       AGED 38 YEARS,
       RESIDING AT BEHIND
       JYOTHIR MAHESHWARA TEMPLE,
       SRIRANGAPATNA TALUK,
       MANDYA DISTRICT-580032.
                                        ...RESPONDENTS

(BY SRI. V. SRINIAVAS, ADVOCATE FOR RESPONDENT NOs.1,
2(a) TO 2(c) AND 3)

     THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 CPC AGAINST THE JUDGMENT AND DECREE
DATED 06.08.2007 PASSED IN RA.NO.68/2005 ON THE FILE OF
THE   ADDL.CIVIL    JUDGE   (SR.DN.)   SRIRANGAPATNA,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT
AND DECREE DATED 17.10.2005 PASSED IN OS.NO.14/2001
ON THE FILE OF THE PRL.CIVIL JUDGE (JR.DN.) AND JMFC.,
SRIRANGAPATNA.
                                3



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

                          JUDGMENT

This appeal is filed by the unsuccessful plaintiff in

O.S. No.14/2001 on the file of the Prl. Civil Judge (Jr.Dn.)

and J.M.F.C. Srirangapatna (henceforth referred to as 'Trial

Court') challenging the concurrent finding of fact recorded

by both the Courts that the plaintiff is not entitled to the

relief of declaration and injunction in respect of the suit

schedule property.

2. The parties shall henceforth be referred as

they were arrayed before the Trial Court.

3. The suit in O.S. No.14/2001 was filed for

declaration that the plaintiff is the owner and in possession

and enjoyment of the suit schedule property and for

consequential relief of injunction restraining the

defendants from interfering with the possession of the

plaintiff in the suit property. The plaintiff claimed that the

suit property belonged to his uncle Hutchaiah, who

purchased it from the father of the plaintiff. However, the

plaintiff alleged that the actual possession of the suit

property was with the plaintiff and his father. The plaintiff

claimed that Hutchaiah reconveyed the property to the

plaintiff by a sale deed dated 09.11.1961 and that the

plaintiff and his father continued to be in possession of the

suit property without any disturbance. The plaintiff alleged

that his father and uncle had divided their properties

during their life time and were enjoying their respective

portions. The suit property fell to the share of plaintiff's

father and after the sale of suit property in favour of the

plaintiff, he was in possession and enjoyment. He also

claimed that the katha of the suit properties stood in his

name. He alleged that defendant No.1 was the wife and

defendants No.2 and 3 were the son and unmarried

daughter of Hutchaiah, who had no right in the suit

property. Nonetheless, they submitted an application to

the Town Municipal Council, Srirangapatna for change of

katha into their name. The Council directed the parties to

get their dispute adjudicated before the Civil Court. The

plaintiff claimed that the defendants were interfering with

his possession and therefore, filed the suit for the reliefs

mentioned above.

4. The defendants contested the suit and claimed

that the suit property was purchased by Hutchaiah and

later Hutchaiah conveyed a portion of the property to the

plaintiff on 09.11.1961. They claimed that what was

conveyed was the land measuring East-West 35ft. and

North-South 12½ ft. and he retained the portion on the

southern side of the house of plaintiff. They claimed that

Hutchaiah constructed a tiled roof house and other

structures, wherein the defendants were residing

continuously and were the owners in possession. They

alleged that the plaintiff had deliberately included the

portion in their possession and had filed the suit. They

claimed that they had no interest in the house and pial

purchased by the plaintiff under the sale deed dated

09.11.1961, and therefore, the plaintiff is not entitled for

declaration in respect of the entire suit property.

5. Based on these rival contentions, the Trial

Court framed the following issues:

i) Whether the plaintiff proves that under registered sale deed dt:09.11.1961 Huchaiah resold the entire suit schedule property in favour of father of plaintiff?

ii) Whether the defendants prove that Huchaiah had re-sold only the northern portion of the property and had retained for himself "ABCD" portion as detailed in the rough sketch annexed to the written statement?

iii) Whether the plaintiff proves absolute title over the entire property?

iv) Whether plaintiff is entitled to the relief of declaration and permanent injunction as sought for?

v) What order or decree?

6. The plaintiff was examined as P.W.1 and he

marked a document as Ex.P-1, while defendant No.2 was

examined as D.W.1 and he marked documents as Exs.D-1

to D4 and he also examined one witness as D.W.2.

7. Based on the oral and documentary evidence,

the Trial Court held that the plaintiff failed to prove that he

had purchased the entire suit property from Hutchaiah in

terms of a sale deed dated 09.11.1961. It also held that

the defendants had proved that Hutchaiah had sold only

northern portion of the suit property and had retained the

southern portion and hence dismissed the suit.

8. An appeal was preferred by the plaintiff before

the First Appellate Court in R.A. No.68/2005. The First

Appellate Court secured the records of the Trial Court,

heard the counsel for the parties and framed the following

points for consideration :

i) Whether the plaintiff proves that the Trial Court has erred in holding that he is not the owner and in possession of the schedule property as described in the plaint that as urged in the appeal?

ii) Whether he proves the appointment of court commissioner is necessary to measure the schedule property as stated in I.A.No.1?

iii) Whether he proves the additional evidence is necessary as stated in I.A.No.2?

iv) Whether he proves that the Judgment and Decree of the Trial Court is perverse and erroneous and if so it calls inference of this court as urged in the appeal?

v) What order or decree?

9. The First Appellate Court held that a careful

perusal of the sale deed dated 09.11.1961 disclosed that

Hutchaiah had sold the house and pial to the plaintiff and

had not sold the vacant site to the plaintiff. Nonetheless,

the boundary of the property sold was mentioned on the

southern side as a site of Eeraiah. The First Appellate

Court held that Hutchaiah while executing Ex.P-1 had

specifically declared that he had sold a house to the

plaintiff excluding the vacant site on the southern side. It

also held that the plaintiff was trying to establish his title

over not only the house and pial, but also the vacant site

by taking advantage of the southern boundary that was

wrongly mentioned. The First Appellate Court rejected an

application filed by the plaintiff for appointment of the

Commissioner to measure the property and also to receive

additional evidence. The First Appellate Court held that

since there was no dispute regarding the extent of the

property sold but the dispute was only regarding the

vacant site lying on the south of the house, it felt that it

was unnecessary to appoint a Court Commissioner.

10. In so far as the application for additional

evidence is concerned, it held that the tax paid receipts

which were sought to be adduced as additional evidence

were in no way helpful to decide the case. Hence, it

dismissed the appeal and confirmed the Judgment and

Decree of the Trial Court.

11. Being aggrieved by the aforesaid Judgment

and Decree, the present Regular Second Appeal is filed.

12. This appeal is admitted to consider the

following substantial question of law :

i) Whether the judgment of the courts below that the appellant / plaintiff has failed to prove his ownership to the suit schedule property are perverse being contrary to the oral and documentary evidence?

ii) In the facts and circumstances of the case, whether the courts below are justified in dismissing the suit of the appellant / plaintiff though the property described in the schedule to the plaint is in conformity with the description of the property under Ex.P-1 and Ex.D-4?

13. I have perused the records of the Trial Court

as well as the Judgment and Decree of the Trial Court and

First Appellate Court. I have also considered the grounds

urged in the appeal memorandum.

14. A careful consideration of the averments of the

plaint and the written statement invariably leads to the

conclusion that parties are litigating over the vacant site

which the plaintiff alleges was sold to him, while the

defendants deny it. The fact that the suit property was

earlier owned and possessed by the father of the plaintiff is

not in dispute. It is also not in dispute that he sold the

said property to Hutchaiah, the husband of defendant No.1

and father of defendants No.2 and 3. It is also not in

dispute that Hutchaiah executed a sale deed dated

09.11.1961 in favour of the plaintiff whereby he conveyed

the following property :

"²æÃgÀAUÀ¥ÀlÚzÀ PÀ¸À¨Á ºÉƸÀUÀÄr ©Ã¢AiÀÄ°ègÀĪÀÅzÀÄ ¥ÀÆgÀéPÉÌ SÁ° eÁUÀ, ¥À²ÑªÀÄPÉÌ gÀ¸ÉÛ, zÀQëtPÉÌ FgÀAiÀÄå£À »vÀÛ®Ä, GvÀÛgÀPÉÌ £À£Àß ªÀÄ£É F ªÀÄzsÉå EgÀĪÀ ªÀÄĤ¹¥À¯ï qÉÆÃgï £ÀA§æ MA¨ÉÊ£ÀÆgÀ JAlÄ G¼Àî ªÀA¨sÀvÀÄÛ CAPÀt G¼Àî ºÉAa£À PÀªÀ½UÉ ªÀÄ£É ªÀÄvÀÄÛ F ªÀÄ£ÉAiÀÄ ªÀÄÄA¨sÁUÀzÀ°ègÀĪÀ dUÀ° ¸ÀºÀ. F ªÀÄ£ÉAiÀÄ zÀQët ¢QÌ£À°ègÀĪÀ F ªÀÄ£ÉUÉ ¸ÉÃjzÀ »vÀÛ®Ä RjâUÉ M¼À¥ÀnÖgÀĪÀÅ¢®è."

15. The photograph of the suit property is

produced as Ex.D-1 while Ex.D-2 is claimed to be the

photograph of house of defendants. Ex.D-3 is a certified

copy of sale deed by which the father of the plaintiff sold

the suit property to Hutchaiah on 14.05.1949. The

Schedule mentioned in this sale deed is as follows :

"²æÃgÀAUÀ¥ÀlÖtzÀ PÀ¸À¨Á ºÉƸÀUÀgÀr ©Ã¢AiÀÄ°ègÀĪÀ ¥ÀƪÀðPÉÌ SÁ° eÁUÀ, ¥À²ÑªÀÄPÉÌ gÀ¸ÉÛ, zÀQëtPÉÌ FgÀAiÀÄå£À »vÀÛ®Ä, GvÀÛgÀPÉÌ ¤ªÀÄä ¨Á§ÄÛ ªÀÄ£É F ªÀÄzsÉå EgÀĪÀ ªÀÄĤ¹¥À¯ï qÉÆÃgï £ÀA§gÀÄ MA¨sÉÊ£ÀÆgÀ JAl£Éà ºÉAa£À ªÀÄ£É MA¨sÀvÀÄÛ CAPÀt EzÀPÉÌ ¸ÉÃjzÀ »vÀÛ®Ä ªÀÄvÀÄÛ ªÀÄÄA¨sÁUÀzÀ dUÀ° ªÀÄÆgÀÄ CAPÀt G¼Àî ªÀÄ£É."

16. It is therefore clear that the entire property

was bound on the south by property of Eeraiah. However,

when the sale deed dated 09.11.1961 was executed in

favour of the plaintiff instead of mentioning the southern

boundary as the remaining portion of the property, it was

mentioned as property of Eeraiah. It is due to this that the

plaintiff has claimed that he purchased the entire suit

property. However, Ex.P-1 and Ex.D-4 are clear that

Hutchaiah sold the house and pial to the plaintiff. But, the

backyard was not sold to the plaintiff. The oral evidence of

P.W.1 disclosed that plaintiff was aware of the recitals in

Ex.P-1 and he deposed that the recitals contained therein

were correct. He deposed that the property stood as it

was when he purchased from Hutchaiah and also that he

had not carried out any repairs after he purchased from

Hutchaiah. He deposed that his father had sold 9 ankana

house 3 ankana frontyard and the backyard on the

southern side to Hutchaiah. He admitted that as per Ex.P-

1 the vacant site on the south of the property was not sold

to him. He stated that the property upto the white washed

portion found in the photograph at Ex.D-1 belonged to him

and that the property of Eeraiah was painted red. He also

stated that between his property and the property of

Hutchaiah there was a retaining wall. He also admitted

that Ex.D-2 was the photograph of the house where the

defendants were residing and the persons found in Ex.D-2

were the defendants. He categorically admitted that the

defendants are residing in the southern side of his

property.

17. The aforesaid evidence would disclose that the

suit property was earlier comprised of a house, frontyard

and backyard, which was owned by the father of the

plaintiff, who sold it to Hutchaiah in the year 1949 as per

Ex.D-3. Later, Hutchaiah sold the house, but expressly did

not sell the backyard. The defendants are residing in a

house constructed in the backyard beyond which lay the

property of Eeraiah. The plaintiff seems to have attempted

to claim title over this backyard by claiming that the

southern side boundary is mentioned as the property of

Eeraiah. The Trial Court and First Appellate Court have

very earnestly considered the oral and documentary

evidence and have held that the plaintiff has failed to

prove that he is the owner of the suit property and hence

were right in dismissing the suit. In view of the above, the

substantial question of law framed by this Court is

answered as follows:

Both the Courts have considered the oral and

documentary evidence which clearly demonstrated that the

plaintiff was not the owner of the entire suit property and

the boundaries mentioned in Ex.P-1 and Ex.D-4 clearly

excluded the backyard but the suit was filed including the

backyard and hence it was not maintainable.

In view of the above, this appeal lacks merit and

hence, it is dismissed.

Pending I.A., if any, does not survive for

consideration.

Sd/-

JUDGE

hnm