Karnataka High Court
Jayaramu vs Krishnappa on 13 December, 2023
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RSA No. 1467 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 1467 OF 2012 (DEC/INJ)
BETWEEN:
JAYARAMU
S/O LATE RAMEGOWDA
AGED ABOUT 56 YEARS
R/O LOKANAYAKANAGAR
HEBBAL MAIN ROAD,
MYSORE - 570 016
...APPELLANT
(BY SMT. SAVITHA T.H., ADVOCATE FOR
SRI. LOKESH B.N., ADVOCATE)
AND:
1. KRISHNAPPA
S/O LATE KARIYAPPA
AGED ABOUT 79 YEARS
Digitally signed
by R DEEPA 2. SOMANNA
Location: High S/O LATE KARIYAPPA
Court of AGED ABOUT 76 YEARS
Karnataka
3. MARIGOWDA
S/O LATE KARIYAPPA
AGED ABOUT 70 YEARS
4. ANKEGOWDA
S/O LATE KARIYAPPA
AGED ABOUT 66 YEARS
RESPONDENT Nos.1 TO 4 ARE SONS OF
LATE KARIYAPPA
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RSA No. 1467 of 2012
ALL ARE R/A NO.2300, 2ND CROSS
VINAYAKANAGARA, DEVARAJA MOHALLA,
MYSORE CITY - 570 001
5. VIJAYA
W/O LINGEGOWDA
AGED ABOUT 43 YEARS
R/A NO.23, 1ST CROSS
VINAYAKANAGARA,
DEVARAJA MOHALLA,
MYSORE CITY - 570001
...RESPONDENTS
(BY SRI. V R BALARAJ, ADVOCATE FOR R5
R1, R2, R3 & R4 ARE SERVED)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DTD 21.2.2012 PASSED IN
R.A.NO.785/2009 ON THE FILE OF PRESIDING OFFICER, FAST
TRACK COURT-I, MYSORE, ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGEMENT AND DECREE DTD 16.7.2007
PASSED IN OS.NO.212/2006 ON THE FILE OF V ADDITIONAL
FIRST CIVIL JUDGE (JR.DN.), MYSORE.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This second appeal is filed by the appellant
challenging the judgment and decree dated 21.02.2012, in
R.A.No.785/2009 passed by the Fast Track Court-I,
Mysore.
2. For the sake of convenience, parties are referred
to as per their ranking before the trial Court. The
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appellant is the plaintiff and respondents are the
defendants.
3. The brief facts leading rise to filing of this appeal
are as under:
Plaintiff filed a suit for declaration of title and
permanent injunction. It is the case of the plaintiff that
originally the entire property bearing Door No.2300-D3,
2nd Cross, Vinayaka Nagar Badavane, Mysore, was
standing in the name of one late Kariyappa under the
partition deed which was effected on 06.04.1958. In the
said partition, the said property was allotted to the share
of one Ramegowda i.e., the father of plaintiff. After his
demise, khata of the suit schedule property was changed
in the name of the plaintiff and new sub number was
assigned as 2300/1D and 21300/D3/1D by Mysore City
Corporation and it issued form No.9 to the extent of the
property bearing No.70 X 45 ft consisting of country tiled
building measuring 17.65 sq.ft. The suit property is a
portion of the said property, standing in the name of the
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plaintiff and other family members do not have any right
over the suit schedule property. Defendant Nos.1 to 4 are
none other than the paternal uncles of the plaintiff. They
having colluded with the defendant No.5, got the sale deed
pertaining to the suit schedule property which had fallen to
the share of the father of plaintiff in favour of defendant
No.5. Thus, defendant No.5 is not bonafide purchaser.
Further, it is contended that defendant Nos.1 to 4 have no
right, title or interest to execute the registered sale deed
in favour of defendant No.5 with respect of suit property.
On the strength of said registered sale deed, defendant
No.5 is trying to put up the construction over the suit
schedule property. Hence, cause of action arose for the
plaintiff to file the suit.
4. Defendant Nos.1 to 4 filed written statement
denying the averments made in the plaint. Further
contending that the plaintiff is not the son of
Ramegowda. It is the case of the defendant Nos.1 to 4
that the plaintiff is the son of Ramaiah @ Ramegowda and
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the father of defendant Nos.1 to 4 is Karigowda @
Kariyappa. They are the brothers and the plaintiff is the 3rd
son of 2nd wife of Ramaiah @ Ramegowda who is the
paternal senior uncle of defendant Nos.1 to 4. The khatha
continued in the name of Kariyappa. Therefore, defendant
Nos.1 to 4 sold the property in favour of defendant No.5.
Hence, prayed to dismiss the suit.
5. Defendant No.5 filed the written statement
denying the averments made in the plaint and also denied
the relationship of plaintiff with deceased Ramegowda. It
is denied that alleged partition deed dated 06.04.1968, it
is contended that defendant Nos.1 to 4 jointly executed
the registered sale deed in favour of defendant No.5 for
valuable consideration. Defendant No.5 is the bonafide
purchaser and defendant No.5 had obtained the building
license to put up construction and she had started to put
up construction. It is contended that the plaintiff has come
up with the present suit to harass the defendant No5 and
ake unlawful gain. Hence, prayed to dismiss the suit.
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6. The Trial Court, on the basis of the above said
pleadings, framed the following issues:
1. Whether the plaintiff is entitled for the relief
of declaration?
2. Whether the plaintiff proves that, he is in
lawful possession and enjoyment of the suit
schedule property?
3. Whether the plaintiff further proves that the
defendants have interfered with the peaceful
possession in the suit schedule property?
4. Whether the plaintiff is entitled to the relief
as prayed for?
5. What order or decree?
7. In order to substantiate the case of the plaintiff,
the plaintiff examined himself as PW-1 and got examined
two witnesses as PW-2 & PW-3 and got marked 7
documents as Exs.P1 to P7. Defendant No.1 was
examined himself as DW-1 and defendant No.5 examined
as DW-2 and got marked 12 documents as Exs.D1 to D12.
The trial Court on the assessment of oral and documentary
evidence of the parties, answered issue Nos.1 to 4 and
additional issues in the affirmative and issue No.5 as per
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the final order, consequently, decreed the suit of the
plaintiff. It is ordered and decreed that the sale deed
executed on 04.01.2005 by defendant Nos.1 to 4 in favour
of defendant No.5 in respect of suit schedule property is
illegal, null and void and the same is not binding on the
plaintiff and further restrained the defendants, by way of
decree of permanent injunction restraining the defendants
from interfering with the plaintiff's peaceful possession and
enjoyment of the suit schedule property. And further
defendant No.5 is directed to demolish the construction
put up by her on the property measuring East to West 12
ft and North to South 10.5 ft., out of total extent of 17 X
45 ft by way of Mandatory Injunction.
8. The defendant No.5 aggrieved by the judgment
and decree passed by the trial Court, filed an appeal in
R.A.No.785/2009 on the file of Fast track Court-I, Mysore.
The First Appellate Court, after hearing the parties, has
framed the following points for consideration:
1. Whether the applications filed under Order
41 Rule 27 CPC deserves to be allowed?
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2. Whether the judgment and decree of the trial
Court is improper?
3. Whether there are reasons to interfere with
the findings recorded by the trial Court?
4. What order?
9. The First Appellate Court, on re-assessment of
oral and documentary evidence, answered point No.1 in
the negative and point Nos.2 and 3 in the affirmative,
point No.4 as per final order and consequently allowed the
appeal and set aside the judgment and decree passed by
the trial Court and dismissed the suit of the plaintiff with
costs. The plaintiff, aggrieved by the judgment and decree
passed by the First Appellate Court, has filed this second
appeal.
10. This court admitted the appeal on the following
substantial question of law :
i. Whether the First Appellate Court
committed an error in ignoring the
registered partition deed dated
06.04.1958 (Ex.P.6) that indicated that
the suit schedule property was allotted
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to the share of the father of the
plaintiff?
ii. Whether the First Appellate Court was
justified in reversing the judgment and
decree of the trial Court?
11. Heard learned counsel for the plaintiff and also
learned counsel for the defendant No.5.
12. Learned counsel for the plaintiff submits that the
plaintiff has produced Ex.P.6 to establish that the suit
schedule property was fallen to the share of plaintiff's
father. On the strength of Ex.P.6, name of the plaintiff's
father was entered in the revenue records. She submits
that after his demise, said property was transferred in the
name of plaintiff. The plaintiff is the absolute owner of the
suit schedule property. She submits that defendant Nos.1
to 4 have no right to execute the registered sale deed in
favour of defendant No.5 and defendant No.5 has not
acquired any title under the registered sale deed alleged to
have been executed by defendant Nos.1 to 4. She
submits that the First Appellate Court has committed an
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error in over looking Ex.D.8 and ignoring the registered
partition deed dated 06.04.1958 as per Ex.P.6. She
further submits that First Appellate Court has passed
impugned judgment solely on the ground that the plaintiff
has not challenged the building license issued in favour of
defendant No.5. She submits that the said building license
had been obtained by the defendant No.5 during the
pendency of the suit. Hence, she submits that there was
no occasion for the plaintiff to challenge the said building
license. She further submits that the during the pendency
of the suit, defendant No.5 constructed the building in suit
land. Hence, on these grounds she submits that the First
Appellate Court has committed an error in passing the
impugned judgment and decree. Hence, on these grounds
she prays to allow the appeal.
13. Per contra, learned counsel for the defendant
No.5 submits that at the time of purchasing the property
by defendant No.5, the said property stood in the name of
defendant Nos.1 to 4. Defendant No.5 after verifying the
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records, she has purchased the suit schedule property.
Hence, defendant No.5 is a bonafide purchaser. He
submits that on the strength of registered sale deed
executed by defendant Nos.1 to 4 in favour of defendant
No.5, khata was transferred in the name of defendant
No.5 and defendant No.5 obtained building license from
the concerned authority and constructed the building.
Hence, he submits that the plaintiff had not challenged the
building license issued in favour of defendant No.5.
Hence, First Appellate Court was justified in passing the
impugned judgment and decree. Hence, on these grounds
he prays to dismiss the appeal.
14. Perused the records and considered the
submissions of learned counsel for the parties.
15. Substantial question of law No.1: The
plaintiff in order to prove his case examined himself as
PW.1 and he has reiterated the plaint averments in the
examination-in-chief and produced the documents. Ex.P.1
is the Form No.9; Ex.P.2 is the registered sale deed
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executed by defendant Nos.1 to 4 in favour of defendant
No.5; Ex.P.3 is the self assessment of tax in respect of suit
schedule property; Ex.P.4 is the tax paid receipt; Ex.P.5 is
demand register extract; Ex.P.6 is the certified copy of
partition deed which discloses that there was partition
between the children of Ankaiah @ Ankegowda and Ex.P.7
is the original partition deed dated 06.04.1958.
16. It is the case of the plaintiff that partition was
effected as per the partition deed dated 06.04.1958
wherein the suit schedule property was allotted to the
share of his father in the said partition. After the death of
father of plaintiff, other brothers and sisters of the plaintiff
have consented to effect the khata in the name of plaintiff
alone with respect to suit property. The plaintiff submitted
the application to the Mysore City Corporation and
obtained khata in respect of his property measuring 17 X
45 ft bearing house No.2300/1D and 2300/D3/1D.
Further, the plaintiff in order to prove his case examined
two witnesses who has deposed that plaintiff is in
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possession of the suit schedule property and father of the
plaintiff had acquired the right over the suit schedule
property by virtue of partition deed dated 06.04.1958.
Thus, by producing Exs.P.6 and 7, khatha and also Ex.P.5,
which discloses that father of the plaintiff was the owner of
the suit schedule property. After his death, the plaintiff
succeeded to the suit schedule property.
17. In rebuttal, defendant No.1 was examined as
DW.1 and he has reiterated written statement averments
in the examination-in-chief and produced the documents.
Ex.D1 is the family survival certificate; Ex.D2 and D3 are
the certificates; Ex.D4 is the sketch; Ex.D5 is the
registered sale deed executed by defendant Nos.1 to 4 in
favour of defendant No.5 on 04.01.2005; Ex.D6 is the
khata endorsement; Ex.D7 is the tax paid receipt; Ex.D8 is
the license commencement certificate issued by Mysore
City Corporation on 07.02.2006; Ex.D9 is the approved
sanction plan; Ex.D10 is the provisional construction
permission issued on 19.07.2006 i.e., after filing the suit,
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Ex.D10 is the completion certificate and Ex.D11 and 12
are the demand register extract. But in the course of
cross examination, he has admitted that the property was
divided under the partition deed dated 06.04.1958 and the
property measuring 17 X 45 ft was allotted to the share of
father of plaintiff. Further admitted that the said property
was allotted to the share of father of plaintiff. DW.1 also
admitted that khata stood in the name of plaintiff. He
deposed that he did not know khata in respect of suit
schedule property measuring 17 X 45 ft was got changed
in the name of Kariyappa. Defendant No.5 has deposed
that she has verified the title deeds and defendant Nos.1
to 4 were the owners of suit schedule property as the
khata was standing in their names. Hence, defendant No.5
hasd purchased the property and defendant 5 is bonafide
purchaser. In the course of cross examination defendant
No.5 has clearly admitted that there was partition in the
property bearing house No.2300 under the partition deed
dated 06.04.1958. Both DW.1 and 2 clearly admitted
about the partition deed effected between the Boregowda,
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Karigowda and Ramegowda and partition deed was
reduced into writing which was registered and the same
was marked as Ex.P.6. From the perusal of the
documents produced by the plaintiff, it discloses that the
suit schedule property was allotted to the share of father
of plaintiff, but defendant Nos.1 to 4 have not pleaded in
the written statement that how defendant Nos.1 to 4 have
acquired the title over the suit schedule property. The
defendant Nos.1 to 4 have failed to establish their
ownership over the suit schedule property. The defendant
Nos.1 to 4 have no right, title to execute the registered
sale deed in favour of defendant No.5. The trial Court was
justified in placing reliance on Ex.P.6 and came to a right
conclusion holding that the plaintiff is the absolute owner
of suit schedule property and the sale deed executed by
defendant Nos.1 to 4 in favour of defendant No.5 is illegal,
null and void and same is not binding on the plaintiff.
18. From the perusal of the records, it discloses that
the defendant No.5 has obtained construction permission
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just prior to filing of the suit and subsequently defendant
No.5 constructed the building during the pendency of suit
and from the perusal of Ex.D10 it discloses that building
was constructed in the month of July, 2006 and
completion certificate was issued on 19.07.2006 wherein
the suit was filed on 06.03.2006, it discloses that
defendant No.5 had put up construction over the portion of
suit schedule property during the pendency of the suit.
Thus, the First Appellate Court committed an error in
passing the impugned judgment solely on the ground that
the plaintiff has not challenged the building license and
further recorded the finding that the plaintiff has got
efficacious remedy under Section 41 Rule 1(h) of Specific
Relief Act. The construction permission was obtained just
before filing of suit and construction was undertaken
during the pendency of suit and completion certificate was
issued during the pendency of the suit. The plaintiff had
no occasion to challenge the sanctioned plan granted in
favour of defendant No.5. The findings recorded by the
First Appellate Court is arbitrary and erroneous. Hence, in
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view of the above discussion, I answer substantial
question No.1 in the affirmative.
19. Substantial question of law No.2: As I have
already recorded in the substantial question of law No.1
that the First Appellate Court has passed the impugned
judgment without considering Ex.P6 which discloses that
the said property was allotted to the share of plaintiff's
father. After his demise, the said property was transferred
in the name of the plaintiff. In rebuttal, defendant Nos.1 to
4 have failed to establish their title over the suit schedule
property. Defendant Nos.1 to 4 have no right to execute a
registered sale deed in favour of defendant No.5.
Defendant No.5 had not acquired title by virtue of Ex.D5.
The First Appellate Court has committed an error in
reversing the judgment and decree passed by the trial
Court. The plaintiff has not challenged the sanctioned plan
issued in favour of defendant No.5. But the First Appellate
Court ignoring Ex.P6 has proceeded to pass the impugned
judgment. The impugned judgment passed by the First
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Appellate Court is arbitrary and erroneous. Hence, In view
of the above discussion, I answer substantial question of
law No.2 in the negative.
20. Accordingly, I proceeded to pass the following:
ORDER
The appeal is allowed.
The judgment and decree passed by the
First Appellate Court in R.A.No.785/2009 dated
21.02.2012 passed by the Fast Track Court-I,
Mysore is hereby set aside.
The judgment and decree passed by the
trial Court is restored.
No order as to the costs.
SD/-
JUDGE
SKS,SSB
