Smt. Huchhamma vs Sri. Ramachandrappa
2023 Latest Caselaw 1382 Kant

                             1


    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 17TH DAY OF FEBRUARY , 2023

                         BEFORE

            THE HON'BLE MRS. JUSTICE M G UMA

    REGULAR SECOND APPEAL NO. 1171 OF 2022 (POS)


BETWEEN:


1. SMT. HUCHHAMMA
   DAUGHTER OF LATE KRISHNAPPA
   AGED ABOUT 56 YEARS
   ANGANAWADI WORKER
   RESIDING AT KATTALAGERE VILLAGE
   CHANNAGIRI TALUK
   DAVANAGERE DISTRICT
   PIN CODE - 577 213.

2. SMT. GEETHAMMA
   DAUGHTER OF LATE KRISHNAPPA
   AGED ABOUT 51 YEARS
   RESIDING AT KATTALAGERE VILLAGE
   CHANNAGIRI TALUK
   DAVANAGERE DISTRICT
   PIN CODE - 577 213.

3. SMT. GAYATRI
   DAUGHTER OF LATE KRISHNAPPA
   AGED ABOUT 46 YEARS
   RESIDING AT KATTALAGERE VILLAGE
   CHANNAGIRI TALUK
   DAVANAGERE DISTRICT.
   PIN CODE - 577 213.

                                           ... APPELLANTS

(BY SRI. P.M. SIDDAMALLAPPA, ADVOCATE)
                               2


AND:

SRI. RAMACHANDRAPPA
SON OF LATE BHEEMAPPA
AGED ABOUT 42 YEARS
RESIDING AT KATTALAGERE
VILLAGE, CHANNAGIRI TALUK
DAVANAGERE DISTRICT
PIN CODE - 577 213.
                                        ... RESPONDENT

(BY SRI: SAGAR B.B., ADVOCATE)


      THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 15.07.2022 PASSED IN
RA.NO.6/2021 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JMFC, CHANNGIRI, ALLOWING THE APPEAL AND SETTING ASIDE
THE JUDGMENT AND DECREE DATED 08.01.2021 PASSED IN
OS.NO.40/2016 ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE
AND JMFC, CHANNAGIRI.


     THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 15.11.2022 COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:


                       JUDGMENT

Defendant Nos.2 to 4 are before this Court being

aggrieved by the judgment and decree dated 15.07.2022

passed in RA No.6 of 2021 on the file of the learned Senior

Civil Judge and JMFC, Channagiri (hereinafter referred to as

'First Appellate Court' for brevity), allowing the appeal with

cost and setting aside the judgment and decree dated

08.01.2021 passed in OS No.40 of 2016 on the file of the

learned II Additional Civil Judge and JMFC, Channagiri

(hereinafter referred to as 'the Trial Court' for brevity), and

decreeing the suit of the plaintiff by directing the defendants

to hand over the vacant possession of the suit schedule

property within one month and restraining them from

interfering with the peaceful possession and enjoyment of

remaining 30 guntas of land in the schedule property.

2. For the sake of convenience, parties are referred

to as per their status and rank before the Trial Court.

3. Brief facts of the case are that, the plaintiff filed

the suit OS No.40 of 2016 against the defendants seeking

direction against them to vacate and hand over the farmhouse

situated on the northern side of the suit schedule property

and for grant of permanent injunction restraining them from

interfering with the possession and enjoyment of the entire

suit schedule property. The schedule appended to the plaint

describes the land bearing Sy.No.189/4 measuring 1 acre 7

guntas, Kattalagere Village, Channagiri Taluk, Davangere

District, with a small farmhouse measuring 15x13 feet with

red tiled roofing, situated on the northern side of the

agricultural land, with the boundaries mentioned therein.

4. It is contended by the plaintiff that he is the

absolute owner in possession of 1 acre 7 guntas of land fully

described in the schedule and he had constructed the

farmhouse which is referred to in the schedule. The

defendants who are the relatives of the plaintiff requested him

to permit them to reside in the farmhouse for a period of two

years and they promised to vacate and handover the

possession of the farmhouse within the said period.

Therefore, the plaintiff permitted the defendants to reside in

the farmhouse on humanitarian grounds.

5. It is contended that the defendants started

showing hostile attitude towards the plaintiff after expiry of

two years. They failed to vacate the premises as promised.

They started interfering with the agricultural activities in

respect of rest of the schedule property, where the plaintiff

used to grow paddy crop. During last week of January 2016,

the defendants made an attempt to prevent the plaintiff from

carrying on the agricultural work. Therefore, the plaintiff filed

the suit against the defendants seeking the relief as stated

above.

6. Defendant No.3 filed the written statement

denying the contentions taken by the plaintiff. It is admitted

that the plaintiff and defendants are the relatives but disputed

the ownership of the plaintiff. It is submitted that late

Ramappa had four sons. The first son is late Krishnappa, the

husband of defendant No.1. The other children are late

Huliyappa, late Thimmappa and Bhimappa who is the father of

the plaintiff. During the life time of Ramappa, he was owning

the schedule property and after his death, the revenue

records changed in the name of Bhimappa and he was

managing the family as Kartha.

7. It is contended that on 02.08.1991, the father of

the plaintiff executed saguvali kararu patra in respect of

northern 10 guntas, out of 1.5 acres in Sy.No.189/4 in favour

of Krishnappa, the husband of defendant No.1. As per the

recitals found in the saguvali kararu patra, Krishnappa and his

wife Gangamma were declared to have right to enjoy the

property during their life time. Accordingly, Krishnappa was in

peaceful possession and enjoyment of the said 10 guntas of

land and he constructed the residential house, where the

defendants are residing. After the death of Krishnappa,

defendant Nos.1 to 4 continued to be in possession and

enjoyment of the schedule property. It is further contended

that after death of Bhimappa, the plaintiff got mutated his

name in the revenue records by suppressing the grant of 10

guntas of land with house property. The defendants have

paid the land revenue from 1990 onwards. They have planted

trees and growing vegetables. It is also contended that

plaintiff and his father were never in possession of the said 10

guntas of land from 02.08.1991. The suit is barred by

limitation as the defendants are in possession since that date.

Therefore, defendant No.3 prayed for dismissal of the suit

with cost.

8. Defendant No.1 filed a memo adopting the written

statement filed by defendant No.3.

9. On the basis of these pleadings, the Trial Court

framed the following issues as under:

1. Whether the plaintiff proves that he has given the suit farm house to an extent of

15x13 to the defendants in the year 2012 to reside on humanitarian grounds?

2. Whether the defendants prove that out of the suit schedule property to an extent of 10 guntas has been given to them by way of sagivali kararu patra by father of plaintiff?

3. Whether the plaintiff is entitled for the recovery of possession and permanent injunction with respect to suit schedule farm house?

4. What order or decree?"

5. Whether the plaintiff is entitled for the reliefs as sought for?

6. What order or decree?"

10. The plaintiff examined himself as PW1 and got

marked Exs.P1 to P4 in support of his contention. Defendant

No.3 examined herself as DW1 and got marked Exs.D1 and

D2 in support of her defence. The Trial Court after taking into

consideration all these materials on record, answered issue

Nos.1 to 3 in the Negative and dismissed the suit of the

plaintiff with cost.

11. Being aggrieved by the same, the plaintiff has

preferred RA No.6 of 2021. The First Appellate Court on re-

appreciation of the materials on record, allowed the appeal

with cost, set aside the impugned judgment and decree

passed by the Trial Court and directed the defendants to

hand-over vacant possession of the suit schedule property

within one month from the date of judgment. They were also

restrained by an order of permanent injunction from

interfering with the possession and enjoyment of remaining

30 guntas of land in the schedule property. Being aggrieved

by the same, defendant Nos.2 to 4 have preferred this second

appeal.

12. Heard Sri P M Siddamallappa, learned counsel for

the appellants and Sri B B Sagar, learned counsel for the

respondent. Perused the materials on record including the

Trial Court records.

13. Learned counsel for the appellants contended that

the Trial Court after appreciating the materials on record

answered issue Nos.1 to 3 in the Negative. There is

categorical finding that the plaintiff has not proved his

ownership over the property. When the plaintiff preferred the

appeal in RA No.6 of 2021, the plaintiff filed application under

Order XLI Rule 27 of CPC producing additional documents to

prove his ownership over the schedule property. The said

application came to be dismissed by the First Appellate Court.

Therefore, it is clear that the plaintiff has not proved the

ownership over the schedule property. Under such

circumstances, the First Appellate Court committed an error in

decreeing the suit of the plaintiff. The First Appellate Court

has not taken into consideration the defence taken by the

defendants. Ex.D1 is the agreement upon which the

appellants are in possession of the property. At the time of

filing the suit, defendant No.1 Gangamma was alive and

therefore, the plaintiff could not have maintained the suit.

14. Learned counsel further submitted that, as per

Ex.P3, Sy.No.189/4 measuring 1 acre 7 guntas stand in the

joint name of Ramachandrappa and Thippeswamy.

Thippeswamy never joined in filing the suit against the

defendants. Therefore, the suit of the plaintiff is liable to be

dismissed. Accordingly, he prays for dismissal of the suit.

15. Per contra, learned counsel for the respondent

opposing the appeal submitted that the defendants are not

claiming any right over the property. Admittedly, they are in

permissive possession under Ex.D1. Father of the plaintiff

purchased the schedule property under the registered sale

deed marked as Ex.P4. The schedule property had fallen to

the share of the plaintiff. When the defendants rely on Ex.D1,

he cannot dispute the ownership of land in question.

Admittedly, the plaintiff is the son of Bhimappa - who is the

author of Ex.D1. The defendants are not claiming any

ownership of the property. Under such circumstances, the

First Appellate Court on proper appreciation of the materials

on record decreed the suit of the plaintiff. There are no

merits in the contention raised by the appellants and prays for

dismissal of the suit.

16. On the basis of rival contentions, the following

substantial question of law was formulated:

"Whether the First Appellate Court was right in allowing the appeal filed by the plaintiff and directing the defendant to hand over the possession of the suit schedule property, ignoring

the fact that the title of the plaintiff is neither pleaded nor proved?"

17. It is the specific contention of the plaintiff that he

is the owner of the property in question as the same had

fallen to his share. The plaintiff produced Ex.P4 - the

registered sale deed under which 1.7 acres of land in

Sy.No.189/4 of Kattalagere village, Chanangiri Taluk was

purchased by Bhimappa, the father of the plaintiff. Defendant

No.1 is the wife of Krishnappa who is the brother of

Bhimappa. Ex.D1 is an admitted document produced and got

marked by the defendants. As per this document, Bhimappa,

the father of the plaintiff permitted Krishnappa and his wife to

be in possession and enjoyment of 10 guntas of land to be

enjoyed by them during their life time. It is specifically stated

that remaining 20 guntas of land was retained by Bhimappa

for his own use and occupation.

18. Defendant No.1 is the wife of Krishnappa who is

referred to in Ex.D1. During the pendancy of suit, she also

died and the appellants are their children. Defendant No.3

daughter of Krishnappa and defendant No.1 filed the written

statement admitting the relationship between the parties. It is

also admitted that the revenue records stood in the name of

Bhimappa, the father of the plaintiff. A specific defence was

taken that on 02.08.1991, the father of the plaintiff executed

saguvalli kararu patra in respect of 10 guntas of land out of 5

acres in Sy.No.189/4 referred to above in favour of

Krishanappa and his wife - defendant No.1 to be in possession

of the same. Accordingly, they were in possession of the

property. When the defendants specifically admit that their

parents were in permissive possession of the land on the basis

of Ex.D1 and when the defendants are not claiming title over

the property, they cannot have any valid defence to squat

over the property. When the defendants admit that the father

of the plaintiff was the khata holder and permitted his brother

Krishnappa and his wife to occupy the land in question, the

defendants cannot deny the right of the plaintiff to seek

possession of the property.

19. Even though, it is contended that the defendants

have paid the land revenue from 1990 onwards, it is only on

the basis of permissive possession granted in favour of

Krishnappa and his wife by the father of the plaintiff. Under

such circumstances, I do not find any merits in the contention

taken by the defendants. Even though, the Trial Court

dismissed the suit of the plaintiff, the First Appellate Court on

proper appreciation of the materials on record, decreed the

suit of the plaintiff. When the defendants are not having any

valid and legal defence, the claim of the plaintiff cannot be

rejected. Under such circumstances, the plaintiff is entitled

for the decree as prayed for.

20. The First Appellate Court on proper appreciation of

the materials on record, decreed the suit of the plaintiff. I do

not find any reason to interfere with the well considered order

passed by the First Appellate Court. Hence, the substantial

question of law is answered in favour of the plaintiff and

against the defendants.

21. Hence, I proceed to pass the following:

ORDER

(i) The appeal is dismissed with costs.

(ii) The judgment and decree dated 15.07.2022

passed in RA No.6 of 2021 on the file of the learned Senior

Civil Judge and JMFC, Channagiri, is hereby confirmed.

(iii) The judgment and decree dated 08.01.2021

passed in OS No.40 of 2016 on the file of the learned II

Additional Civil Judge and JMFC, Channagiri, is hereby set

aside. Consequently, the suit of the plaintiff is decreed as

prayed for.

Registry is directed to send back the Trial Court records

along with copy of this judgment.

Sd/-

JUDGE

*bgn/-