Karnataka High Court
Karigowda S/O Karigowda vs Smt Karagamma W/O Kalegowda on 7 December, 2023
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RSA No. 621 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 621 OF 2012 (DEC/INJ)
BETWEEN:
KARIGOWDA,
AGED ABOUT 80 YEARS,
S/O. KARIGOWDA,
RESIDENT OF MARBALLI HUNDI,
JAYAPURA HOBLI,
MYSORE TALUK.
...APPELLANT
(BY SRI. P.NATARAJU., ADVOCATE)
AND:
SMT. KARAGAMMA,
AGED ABOUT 75 YEARS,
W/O. KALEGOWDA,
RESIDING AT GANDHANAHALLI VILLAGE,
Digitally signed HOSA AGRAHARA HOBLI,
by R DEEPA
Location: High K.R.NAGAR POST,
Court of MYSORE DISTRICT - 571 602.
Karnataka
...RESPONDENT
(BY SRI. SYED AKBA PASHE., ADVOCATE FOR
SRI. MAHANTESH S. HOSMATH., ADVOCATE FOR
RESPONDENT).
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 16.12.2011 PASSED IN
R.A.NO.293/2011 ON THE FILE OF THE III ADDL. DISTRICT
JUDGE, MYSORE, DISMISSING THE APPEAL FILED AGAINST
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RSA No. 621 of 2012
THE JUDGMENT AND DECREE DATED:23.4.2011 PASSED IN
O.S.NO.600/2007 ON THE FILE OF THE II ADDL. SR. CIVIL
JUDGE, MYSORE AND ETC.,
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This second appeal is filed by the appellant
challenging the judgment and decree dated 16.12.2011,
passed in R.A.No.293/2011 by the III Addl. District Judge
at Mysore, confirming the judgment and decree dated
23.04.2011 passed in O.S.No.600/2007 by the II Addl.
Senior Civil Judge at Mysore.
2. For the sake of convenience, parties are referred
to as per their ranking before the trial Court. The
appellant is the defendant and respondent is plaintiff.
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, in the alternative for the relief of
possession of the suit schedule property. It is the case of
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the plaintiff that the suit schedule property was owned by
plaintiff's father by name Karigowda. The said Karigowda
had two sons i.e., Maridasegowda and Karigowda i.e.,
defendant and one daughter by name Karagamma i.e., the
plaintiff. The father of the plaintiff is the absolute owner
of land bearing Sy.No.342 measuring 4 acres, out of which
he had sold 1 acre of land in favour of the plaintiff. Her
father and brothers i.e., Maridasegowda and Karigowda-
defendant sold said plaint schedule property in favour of
plaintiff under registered sale deed dated 20.05.1966. By
virtue of registered sale deed the plaintiff had become the
absolute owner of plaint schedule property and paying
kandaya to the Government. Since the plaintiff is illiterate
lady, she could not get the khata changed into her name.
But subsequently she came to know that as per sale deed,
survey number of the suit property is mentioned as
Sy.No.241/25, but the real survey number is Sy.No.342.
Because of identical name of Mollekarogowda and the
plaintiff's father Karigowda, survey number was
exchanged, but the boundaries are the same. The land
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purchased by the plaintiff is bounded on East by land of
Nanjamma and others, West by Arisinakeregramada Yelle
and North by land of Cheluvachari and South by
Arasinakeregramada Yelle, At the time of executing the
registered sale deed, survey numbers was mentioned as
Sy.No.241/25 situated at Marballi, but the actual survey
number is Sy.No.342, situated at Marballi. Hence, the
boundaries mentioned is same, but survey numbers were
different. It is submitted that mistake crept in while
drafting the sale deed. Thereafter, 3 acres of land in
Sy.No.342 was changed in the name of plaintiff's brother
Maridasegowda, but remaining 1 acre of land in Sy.No.342
is changed in favour of Karigowda. The plaintiff came to
know about the said wrong entries in the revenue record
about 15 days back before filing of the suit. The
defendant colluded with the revenue officials, got changed
the khata in Sy.No.342 in his name. The defendant has
no right, title or interest over the suit schedule property.
The defendant taking undue advantage of the above
revenue entries and he is trying to interfere with the
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peaceful possession and enjoyment of the plaintiff over the
suit schedule property. Hence cause of action arose for the
plaintiff to file the suit.
4. Defendant filed written statement contending that
the suit is not maintainable and there is no cause of action
to file the suit. It is contended that the property
purchased by the plaintiff is in respect of Sy.No.342 but
not in Sy.No.241/25. It is further contended that there is
no reference of Sy.No.342 in the registered sale deed and
further contended that the registered sale deed executed
in favour of plaintiff is not acted upon and the same and is
created by the plaintiff. Further it is contended that, the
name of plaintiff is not entered in the revenue records. It
is the case of the defendant that he is the owner in
possession of the suit schedule property and contended
that land bearing Sy.No.342 and Sy.No.241/25 are totally
different lands. Hence, there is no cause of action to file
the suit. On these grounds prayed to dismiss the suit.
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5. The Trial Court, on the basis of the above said
pleadings, framed the following issues:
1) Whether the plaintiff proves that she is the
absolute owner in lawful possession and
enjoyment of suit schedule property as on the
date of suit?
2) Whether the plaintiff further proves that the
defendant and his family members have
interfered with her possession and enjoyment
of suit schedule property?
3) Whether the defendant proves that the suit is
not properly valued and the court fee paid is
not sufficient?
4) Whether the plaintiff is entitled for the relief
of declaration and permanent injunction?
5) What order and what decree?
6. In order to prove the case of the plaintiff, the
plaintiff examined herself as PW-1 and got examined two
witnesses as PW-2 & PW-3 and got marked 13 documents
as Exs.P-1 to P-13 of Power of Attorney. In support of the
defence of the defendant, wife of defendant No.1 was
examined as DW-1 and also got examined one witness as
DW-2 and got marked 32 documents as Exs.D-1 to D-32.
The trial Court on assessment of oral and documentary
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evidence has answered issue Nos.1 and 4 partly in
affirmative and issue Nos.2 and 3 in negative and
consequently decreed the suit of the plaintiff in part. It is
ordered and declared that the plaintiff is the absolute
owner of the suit schedule property (1 acre of land on the
extreme southern side of Sy.No.342, old Sy.No.241/25)
and the prayer of the plaintiff for permanent injunction
was rejected. However the trial Court directed the
defendant to deliver possession of the same within four
months from the date of passing the judgment.
7. The defendant aggrieved by the judgment and
decree passed by the trial Court had preferred an appeal
in R.A.No.293/2011 on the file of II Senior Civil Judge,
Mysore. The First Appellate Court, after hearing the
parties, has framed the following points for consideration:
1) Whether the plaintiff has proved her title to
the suit schedule property?
2) Whether the plaintiff is entitled for
possession of suit schedule property?
3) Whether the defendant has proved that no
land is conveyed by him and his brother and
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father under sale deed dated 19.05.1966
executed in favour of the plaintiff?
4) Whether the Judgment and Decree passed
by the trial Court needs to be set aside or
modified?
8. The First Appellate Court, on re-assessment of
the oral and documentary evidence, answered point Nos.1
and 2 in the affirmative and point Nos.3 and 4 in negative
and consequently dismissed the appeal vide judgment
dated 16.12.2011. The defendant aggrieved by the
judgments and decrees passed by the Courts below has
filed the second appeal.
9. This court admitted the appeal on the basis
following substantial question of law :
"Having found that the plaintiff is not in
possession of the suit schedule property,
whether the Courts below are justified in
granting the decree for declaration in
respect of the said property?"
10. Heard learned counsel for the defendant and
learned counsel for the plaintiff.
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11. Learned counsel for the defendant submits that
the suit schedule property claimed by the plaintiff is
different from the property possessed by the defendant
are different. The plaintiff on the basis of the registered
sale deed, is claiming the property of the defendant. He
submits that the plaintiff had no right, title or interest over
the suit schedule property. It is further submitted that the
Courts below have failed to consider the boundaries
mentioned in the registered sale deed and the survey
records. He further submits that the sale deed alleged to
have been executed in favour of plaintiff was not acted
upon and the revenue records were not changed in the
name of plaintiff. It is contended that the Courts below
committed an error in passing the impugned judgments.
Hence, on these grounds prays to allow the appeal.
12. Per contra, learned counsel for the plaintiff
submits that the father of the plaintiff was the absolute
owner of land bearing Sy.No.342 measuring 4 acres. Out
of 4 acres, 1 acre of land was purchased by the plaintiff
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under the registered sale deed dated 20.05.1966, from
her father and brothers. Remaining 3 acres of land was
purchased by Maridasegowda i.e., brother of plaintiff and
defendant. It is contended that the defendant cannot take
u-turn and deny the execution of registered sale deed. He
further submits that the plaintiff became the absolute
owner of the suit schedule property by virtue of registered
sale deed dated 20.05.1966. He further submits that the
plaintiff has also pleaded in the plaint that in case Court
comes to a conclusion that the plaintiff is not in possession
of the property, sought for alternative relief of possession.
Hence, he submits that both the Courts below were
justified in passing the impugned judgments and decrees.
Hence, on these grounds prays to dismiss the appeal.
13. Perused the records and considered the
submissions of learned counsel for the parties.
14. Substantial Question of law: It is the case
of the plaintiff that land bearing Sy.No.342 was owned and
possessed by her father and he sold portion of land to an
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extent of 1 acre in favour of plaintiff for valid consideration
and thereafter, plaintiffs father and his brothers namely
Maridasegowda and defendant jointly executed registered
sale deed in favour of plaintiff on 20.05.1966 and since
from the date of purchase, the plaintiff is in possession
and enjoyment of the suit schedule property. The plaintiff
had produced documents. Ex.P-1 is the certified copy of
the registered sale deed executed by father and brothers
of the plaintiff in favour of her and in respect of suit
schedule property, Ex.P-2 is the RTC extract in respect of
land bearing Sy.No.342 stands in the name of father of the
plaintiff for the year 1972-73 to 1974-75, Ex.P-3 is the
copy of RTC in Sy.No.342 stands in the name of father for
the year 1976-77 to 1978-79, Ex.P-4 is the copy of RTC in
respect of land bearing Sy.No.342 it is stands in the name
of brothers of defendant i.e., Maridasegowda and
defendant from 1991-92 till 1995-96, Ex.P-5 is the RTC
extract of land bearing Sy.No.342 stands in the name of
Maridasegowda and defendant, Ex.P-6 and P-7 are the
Index of land, Ex.P-8 is the RTC extract in respect of
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Sy.No.342 standing in the name of Maridasegowda and
defendant for the year 1986-1987 till 1990-91, Ex.P-9 is
the RTC extracts standing in the name of Maridasegowda,
Exs.P-10, P-11, P-12 are the Phasalu Pahani standing in
the name of defendant and Ex.P-13 is the Encumbrance
certificate issued by the Sub Registrar on 11.04.2005.
Nothing has been elicited from the mouth of this witness in
regard to the purchase of land from the plaintiff by the
father of plaintiff and brothers, i.e., Maridasegowda and
defendant. The plaintiff examined Maridasegowda as PW-
2, who is brother of plaintiff and defendant. He has
deposed that previously the suit property was belonged
the father and previously plaint schedule property bearing
Sy.No.342 was numbered as Sy.No.241/25. He admits
that his father, himself and defendant have jointly
executed the registered sale deed in favour of plaintiff on
20.05.1966, to an extent of 1 acre of land and handed
over the possession of suit schedule property to the
plaintiff. A suggestion was put to PW-2 that there was
partition between the defendant and PW-2. He admits the
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same and since from the date of partition, both PW-2 and
defendant are residing separately and he admits that the
entire extent of land bearing Sy.No.342 measures 4 acres.
He pleads ignorance that in the said partition, 20 guntas of
land was fallen to his share and remaining 2.20 guntas
was fallen to the share of defendant and he admits that
defendant is paying kandaya in respect of land bearing
Sy.No.342 to an extent of 2.20 guntas. A suggestion was
put to PW-2 that on the strength of partition, whether the
name of plaintiff and defendant was shown in the revenue
records. He denied that the defendant had mortgaged
the said property and obtained the loan. Further, the
plaintiff had also examined one Puttaraju as PW-3. He
had deposed that the plaintiff purchased the land bearing
Sy.No.342 measuring 1 acre from her father, defendant
and his brother Maridasegowda, under registered sale
deed dated 20.05.1966 and he owns a land bearing
Sy.No.60 and the said land is adjacent to the land of
plaintiff. The defendant and his brother Maridasegowda
are in possession of 2.20 acres of land and plaintiff in
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possession of 1 acre of land in Sy.No.342 and the plaintiff
is personally cultivating the suit land and nothing has been
elicited from the mouth of this witness.
15. In rebuttal the power of attorney holder of the
defendant was examined as DW-1 and she had reiterated
the written statement averments in the examination-in-
chief. DW-1 is none other than the wife of defendant. In
the course of cross-examination it is elicited that she does
not know as to in which survey number the house is
situated. She admits that Sy.No.342 stands in the name
of defendant and she does not know about the other
survey numbers. She pleads ignorance that the defendant
had executed registered sale deed dated 20.05.1966 in
favour of plaintiff. Defendant had examined DW-2 in order
to prove the possession.
16. From the perusal of the records produced by
the parties, it is clear that land bearing Sy.No.342 (old
No.241/25) was owned and possessed by father of plaintiff
and defendant and further the father of the plaintiff,
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defendant and brother of plaintiff i.e., Maridasegowda
have executed registered sale deed in respect of land
bearing Sy.No.241/25 in favour of plaintiff and the said
fact is also admitted by DW-1. Though it is the case of the
plaintiff that there is a mistake in the survey number
mentioned in the registered sale deed, however, the
boundaries shown in the registered sale deed i.e., Ex.P-1
and the boundaries shown in the plaint are one and the
same. Further, incase if there is any discrepancy in the
survey number, as per Order VII Rule 3 property can be
identified either by survey number or by boundaries, i.e.,
when the subject property is an immovable property, the
plaint shall contain the description of the property
sufficient to identify it and in case such property is
identified by the boundaries or numbers in the record of
settlement or survey, the plaint shall specify such
boundaries or numbers. Admittedly in the present case,
the plaintiff has shown the boundaries mentioned in Ex.P1
in the plaint. The said property is identified by the
boundaries. It is not the case of the defendant that the
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boundaries shown in the plaint pertains to the land bearing
Sy.No.342. Further, though sale deed was executed in the
year 1966, but the name of the plaintiff was not change in
the revenue records. However, as per Section 129 of
Karnataka Land Revenue Act, when any person acquires a
right, title by registered instrument, it is the duty of the
Sub Register to send the J-Form to the concerned
authorities. Merely, because the plaintiff had not
submitted an application to change the name in the
revenue record, that does not indicate that the plaintiff is
not the owner of the suit schedule property. From the
perusal of the records, plaintiff had proved that the
plaintiff is the absolute owner of suit land measuring 1
acre Sy.No.342 (old Sy.No.241/25).
17. Though it is the case of the defendant, that the
defendant is in possession of the suit schedule property,
the plaintiff has not sought for the relief of possession.
Further it is the case of the defendant that the suit filed by
the plaintiff for mere declaration without seeking
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consequential relief of possession as per provision of
Section 34 of the Specific Relief Act, is not maintainable.
From the perusal of the plaint, the plaintiff has specifically
stated that she had sought for the relief of injunction, or in
the alternative for the relief of possession. The trial Court
after considering the material on record had recorded a
finding that the defendant is in possession of the property
and the plaintiff has failed to prove the alleged
interference by the defendant. As the plaintiff has prayed
for alternative relief of possession, the trial Court has
granted alternative relief of possession. Further, the
Hon'ble Apex Court in the case of SMT. AKKAMMA AND
OTHERS VS. VEMAVATHI AND OTHERS in Civil Appeal
No.5884/2009 disposed of on 25.11.2021, has held that
"even a suit for declaration is maintainable without
seeking for the relief of possession". In view of the law
laid down by the Hon'ble Apex Court, the suit filed by the
plaintiff is maintainable and Courts below were justified in
passing the impugned judgments and decrees. Hence, I
do not find any grounds to interfere with the impugned
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judgments and decrees. Accordingly, I answer substantial
questions of law in the affirmative.
18. In view of the aforesaid facts and circumstances,
I proceed to pass the following:
ORDER
The appeal is dismissed.
The judgments and decrees passed by the
Courts below are confirmed.
No order as to the costs.
In view of disposal of the appeal, pending IA, if any,
does not survive for consideration and accordingly
disposed of.
Sd/-
JUDGE
SRA
