Karnataka High Court
Smt Basamma vs Sri B.N.Narayanaswamy on 30 August, 2023
Bench: H.P.Sandesh
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RSA No. 1340 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 1340 OF 2021 (DEC/INJ)
BETWEEN:
1. SMT. BASAMMA
W/O LATE H.B.SEENAPPA
AGED ABOUT 62 YEARS
2. MANJUNATH
S/O LATE H.B.SEENAPPA
AGED ABOUT 32 YEARS
3. CHOWDAPPA
S/O LATE H.B.SEENAPPA
AGED ABOUT 27 YEARS
ALL ARE R/AT KYALANUR VILLAGE
VEMGAL HOBLI, KOLAR TALUK
Digitally signed
by SHARANYA T KOLAR DISTRICT-563 102.
Location: HIGH ...APPELLANTS
COURT OF
KARNATAKA
(BY SRI. SHIVANAND METI, ADVOCATE)
AND:
SRI B.N. NARAYANASWAMY
DEAD BY LRS
1. SMT. SUMITHRAMMA
W/O LATE NARAYANASWAMY
AGED ABOUT 31 YEARS
2. SRI B.N. NAGENDRA
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RSA No. 1340 of 2021
S/O LATE NARAYANASWAMY
AGED ABOUT 31 YEARS
3. SRI B.N. NANDAKUMAR
S/O LATE NARAYANASWAMY
AGED ABOUT 29 YEARS
4. SRI.B.N.NAVEEN KUMAR
S/O LATE NARAYANASWAMY
AGED ABOUT 27 YEARS
5. SMT. B.N. RUKMINI
W/O NAVEEN
D/O LATE NARAYANASWAMY
RESPONDENT NOS.1 TO 5 ARE
R/AT BYRANDAHALLI VILLAGE
VEMGAL HOBLI, KOLAR TALUK
KOLAR DISTRICT-563102
6. DYAVAMMA
W/O MANJUNATH
AGED ABOUT 27 YEARS
R/AT KYALANUR VILLAGE
VEMGAL HOBLI,
KOLAR TALUK,
KOLAR DISTRICT-563102
...RESPONDENTS
(BY SRI K.V.NARASIMHAN, ADVOCATE FOR R1 TO R5)
THIS R.S.A IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 07.02.2020 PASSED IN
RA.NO.156/2018 ON THE FILE OF THE III ADDITIONAL
SENIOR CIVIL JUDGE KOLAR DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 12.10.2018
PASSED IN OS.NO.537/2010 ON THE FILE OF THE II
ADDITIONAL CIVIL JUDGE AND JMFC., KOLAR.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
Heard the appellants' counsel and also the counsel
appearing for respondents.
2. The factual matrix of the case of the
respondents before the Trial Court while seeking the relief
of declaration and possession in respect of item No.2 of
the suit schedule property that the property was
purchased from the husband of the present appellant and
also it is the contention that the appellant herein
trespassed item No.2 of the said property and hence,
sought for an order of possession.
3. The defendants have appeared and filed written
statement denying the very sale deed dated 15.02.2000
stating that the same was obtained fraudulently. The Trial
Court having considered the pleadings of the parties
framed the issues as to whether the plaintiff is the
absolute owner of the property by virtue of the sale deed
dated 15.02.2000 and also framed the issue as to whether
the plaintiff is in possession of the suit schedule property
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and whether the defendants have caused any interference
with his possession of the suit schedule property and also
whether the defendant No.1 and 2 prove that the Court
has the pecuniary jurisdiction as contended in the written
statement. The parties are allowed to lead evidence and
accordingly the plaintiff was examined and subsequently
the plaintiff was passed away and his wife was also
examined, PW2 to PW6 are also examined before the Trial
Court and got marked the documents as Ex.P1 to Ex.P17.
On the other hand, the defendant also examined three
witnesses as DW1 to DW3 and got marked Ex.D1 to
Ex.D71. The Trial Court having considered both oral and
documentary evidence, comes to the conclusion that the
plaintiff has proved the title with regard to the suit
schedule property, since the same was purchased in terms
of Ex.P1 and also comes to the conclusion that the plaintiff
is entitled for the relief of possession in respect of item
No.2 of the suit property.
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4. Being aggrieved by the judgment and decree of
the Trial Court, an appeal is filed before the First Appellate
Court in RA No.126/2018. The First Appellate Court on
considering the grounds urged in the appeal which is
extracted at paragraph No.9 in page No.18 and also
formulated the point in paragraph No.13 regarding the
acquisition of the property by plaintiff Narayanaswamy and
the sale deed dated 19.01.2000 and also consider the
defense of the appellants herein formulated the point No.2
as to whether it is a money lending transaction or sale
deed and whether the Trial Court has committed any error
and it requires any interference of the Court. The First
Appellate Court on reconsidering the grounds urged in the
appeal as well as both oral and documentary evidence,
dismiss the appeal by coming to the conclusion that the
Trial Court has not committed any error and confirmed the
judgment of the Trial Court.
5. Being aggrieved by the said concurrent finding,
the present appeal is filed before this Court. The main
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contention of the appellants' counsel before this that in
Ex.P1 except mentioning the boundaries and property
number, no where it is mentioned with regard to the
existence of the building and very approach of the Trial
Court as well as the First Appellate Court is erroneous with
regard to that item No.2 property is within the property of
the sale deed had been purchased in terms of Ex.P1. The
very approach of the Trial Court and First Appellate Court
is erroneous and hence, the counsel would vehemently
contend that both the Courts have erred in decreeing the
suit and dismissing the appeal and without appreciating
the facts and material on record, proceeded to pass such
an order. The counsel would vehemently contend that very
identification of the property is not disputed and only
disputed the document at Ex.P6 and Ex.P7 and those two
documents are created for the purpose of the case.
6. Per Contra, the counsel appearing for the
respondent would vehemently contend that it is not in
dispute that the property was sold but, though they put
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contention that it was only money transaction and not the
sale transaction and the same has not been proved and
the very sale deed is also not challenged before any other
Court of law. Both the Courts having taken note of both
oral and documentary evidence. The counsel also
vehemently contend that while selling of property,
particular description was given in the sale deed in terms
of Ex.P1 and though the buildings are not mentioned, but
document Ex.P6 and Ex.P7 is very clear with regard to the
existence of the house property and those two documents
clearly discloses that the property was earlier standing in
the name of the vendor and same was rounded up after
selling the property. The Ex.P7 document is also clear with
regard to the boundaries is concerned. Now they cannot
contend that house properties are not in existence. Both
the Courts have taken note of the defense which they
have taken and considered both oral and documentary
evidence and not committed any error. The counsel also
brought to notice of this Court that though some of the
documents are marked, DW1 has categorically admitted
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that those electricity bills are standing in the name of
different persons and standing in their names.
7. The counsel also in support of his argument
relied upon the judgment of this Court decided in RSA
No.200221/2015 and RSA No.200220/2015 of Kalaburagi
Bench decided on 28.02.2020 and brought to notice of this
Court at paragraph No.32 and particularly discussion made
in paragraph No.34 with regard to not mentioning of the
building structure and the property gifted to the son and
comes to the conclusion that not mentioning the same in
sale deed itself is not a ground to comes to a other
conclusion.
8. Having heard the appellants' counsel and also
counsel appearing for the respondents and also
considering the material on record, it is not in dispute that
the property was sold in the year 2000 by the husband of
appellant No.1 herein and though contend that it was
monetary transaction and not binding on the same has not
been accepted by both the Courts. Both the Courts have
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given fact finding confirming the same that the same is a
sale deed. No doubt in the sale deed which is marked as
Ex.P1 boundary description was given but not mentioned
the existence of house property. The respondent not only
relied upon the Ex.P1 and also relied upon the Ex.P6 and
Ex.P7 wherein the house property number is also
mentioned and the same was also in the name of the
vendor. Subsequently the same was transferred
subsequent to the sale deed. The contention of the
appellants' counsel that house property there is no recital
in the Ex.P1 cannot be accepted. The fact that originally
the house property is also standing in the name of the
vendor in terms of Ex.P6 and Ex.P7 is very clear and the
same cannot be disputed. The only contention that those
two documents are created by the respondents herein. In
order to prove the same, no such material is placed before
the Court or anything is elicited from the mouth of
witnesses with regard to the Ex.P6 and Ex.P7 and when
such being the case, the very contention of the appellants'
that property is not identified cannot be accepted.
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9. The counsel for respondents also brought to
notice of this Court, while selling the property also nothing
they have retained any property and now they cannot
contend that they have retained any portion of the
property also, to that effect also no document is placed
before the Court and boundaries also very clear and when
such being the case, the Trial Court and also the First
Appellate Court rightly comes to the conclusion that the
property sold by the husband of the appellant in the year
2000 is very clear and moreover the description is also
given and the very contention of the respondents also the
house property is situated within 20 guntas of the land for
which they have sought for the relief of declaration and
also possession and the same is subsequently amended in
paragraph No.10(a) of the plaint. No doubt the said claim
has been denied in the written statement except overall
denial of the same, nothing is placed on record. It is also
the case of the respondents that they have trespassed the
property and hence, the complaint was given and DW1
also in the cross examination admitted that the complaint
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was given and the contention that they have trespassed
the property and hence, they sought for the possession
and when such materials are placed before the Court, I do
not find any error committed by the Trial Court as well as
the First Appellate Court and both Courts have taken note
of the material on record and not passed any perverse
order, when such being the case, I do not find any ground
to admit the appeal and frame any substantive question of
law.
10. The counsel would submits that the appellant is
in possession and if immediate possession is ordered, the
appellants' will be put to irreparable harm and having
considered the factual aspect of the case, the suit was
filed in the year 2010 and almost 13 years has been
elapsed and also the first appeal was dismissed in year
2020 itself. Having considering the said fact into
consideration, it is appropriate to grant 6 months time to
quit and vacate the item No.2 of the suit schedule
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property. With this observation the second appeal is
disposed of.
Sd/-
JUDGE
RHS
