Sri Basavaraju vs Sri Shivakumara Swamigalu
2023 Latest Caselaw 217 Kant

                           1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 4TH DAY OF JANUARY, 2023

                        BEFORE

 THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

 REGULAR SECOND APPEAL NO.948 OF 2011 (DEC & INJ)

BETWEEN:

1.     SRI.BASAVARAJU
       MAJOR BY AGE

2.     SRI.MAHALINGAIAH
       MAJOR BY AGE

3.     SRI.SHIVAKUMAR
       MAJOR BY AGE

4.     SRI.CHANDRASHEKAR
       MAJOR BY AGE

5.     SRI.UMA MAHESHWARA
       MAJOR BY AGE

       ALL ARE CHILDREN OF
       LATE SRI.RUDREGOWDA
       RESIDING AT
       MARALENAHALLI
       TUMAKURU TALUK AND DISTRICT - 572 106

                                        ... APPELLANTS

(BY SRI.VIJAY KRISHNA BHAT, ADVOCATE)

AND
                               2



SRI.SHIVAKUMARA SWAMIGALU
SINCE DEAD BY HIS LRS.

SRI SRI SIDDALINGA MAHASWAMIGALU
SRI.SIDDAGANGA MUTT
KYATHASANDRA
TUMAKURU DISTRICT - 572 104

                                            .....RESPONDENT

(BY SRI.M.SIVAPPA ASSOCIATES AND S.ANIL KUMAR,
ADVOCATE FOR R.1(A))

      THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC., AGAINST THE JUDGMENT AND
DECREE DATED 03.01.2011 PASSED IN R.A.NO.154/2007
ON THE FILE OF THE I ADDITIONAL DISTRICT JUDGE,
TUMKUR, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 02.02.2005 PASSED IN
O.S.NO.274/1995 ON THE FILE OF THE II ADDITIONAL
CIVIL JUDGE (JR. DN.) AND JMFC, TUMKUR AND ETC.

     THIS REGULAR SECOND APPEAL COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:

                        JUDGMENT

The captioned second appeal is filed by unsuccessful

plaintiffs, who have questioned the concurrent findings of

the Courts below, wherein the plaintiffs suit for declaration

of title in respect of the suit schedule properties and in the

alternate, title by way of adverse possession and for

consequential relief of perpetual injunction is dismissed by

both the Courts.

2. For the sake of brevity, the parties are referred

as they are ranked before the Trial Court.

3. The subject matter of the suit are agricultural

lands bearing Sy. No.84/1 and Sy. No.84/2 measuring

34 and 39 guntas respectively situated at Oorkere Village,

Kasaba Hobli, Tumkur Taluk. Plaintiffs have filed the

present suit by contending that suit schedule properties

are ancestral properties of the plaintiffs family. Plaintiffs

have specifically pleaded that during life time of their

father and uncle, there was a partition in the family. In

the said partition, properties in question were allotted to

the plaintiffs father and their father acquired absolute right

over the properties in question. After his death, plaintiffs

have succeeded to the suit lands. Plaintiffs have

specifically pleaded that they are in lawful possession and

enjoyment over the suit schedule properties as absolute

owners. At para No.2 of the plaint, the plaintiffs alleged

that defendant is very influential person and is trying to

dispossess the plaintiffs from the suit schedule properties.

Defendant has made a false claim that one Gangamma D/o

Siddamma gifted the suit item No.1 in favour of one

Nanjappa Deskendra Swamiji under registered Gift Deed

dated 11.01.1965 and the said Nanjappa Deskendra

Swamiji in turn under a registered Gift Deed dated

30.01.1968 gifted the suit item No.1 in favour of

defendant. Likewise, Siddappa gifted the suit item No.2 in

favour of Nanjappa Deskendra Swamiji under a registered

Gift Deed dated 25.03.1965 and the said Nanjappa

Deskendra Swamiji in turn gifted the suit item No.2 in

favour of defendant under a registered Gift Deed dated

30.01.1968. The said Gift Deeds in favour of the

defendant was also seriously disputed by the plaintiffs.

The plaintiffs have also set up a plea of adverse possession

and claimed that they have perfected their title by way of

adverse possession. Based on these set of pleadings, the

present suit is filed seeking relief of declaration of title and

for consequential relief of injunction.

4. The defendant, on receipt of summons, tendered

appearance and filed written statement and stoutly denied

the entire averments made in the plaint. Asserting title

under registered Gift Deeds, defendant claimed that he is

the absolute owner of the suit schedule properties and that

he is in lawful possession and enjoyment over the suit

schedule properties. The defendant claimed that present

suit is filed only to create obstacles and hindrance since

defendant is intending to establish a Junior College and on

these set of pleadings and defence, sought for dismissal of

the suit.

5. The plaintiffs and the defendant to substantiate

their respective claims have led oral and documentary

evidence. The Trial Court having examined oral and

documentary evidence led in by the plaintiffs and rebuttal

evidence led in by the defendant answered issue Nos.1 and

2 in the Negative and issue No.3 in the Affirmative. The

Trial Court referring to the registered Gift Deed vide Ex.D.2

coupled with other rebuttal evidence declined to grant

relief of declaration of title. Referring to the rebuttal

evidence, the Trial Court has also held that the plaintiffs

have failed to prove their lawful possession as on the date

of filing of the suit. On these set of reasoning, the Trial

Court proceeded to dismiss the suit.

6. The plaintiffs feeling aggrieved by the judgment

and decree of the Trial Court preferred an appeal before

the Appellate Court. The Appellate Court being a final fact

finding authority has re-assessed the entire evidence on

record independently. Referring to the evidence led in by

the plaintiffs more particularly Exs.P.1, 2, 7 and 8, the

Appellate Court was of the view that these documents,

which are record of rights pertaining to the suit lands,

would not come to the aid of the plaintiffs in establishing

their title and possession over the suit lands and an

adverse inference was also drawn by the Appellate Court

for want of clear pleadings in the plaint. In regard to

mode of acquisition of right over the suit lands, the

Appellate Court proceeded to draw adverse inference

against the plaintiffs as the pleadings and evidence on

record do not indicate and establish that these lands were

allotted to the plaintiffs' father in the family partition.

In so far as item No.1 is concerned, the Appellate Court

found that there is absolutely no evidence as to how the

plaintiffs have acquired right and title over item No.1.

In so far as item No.2 is concerned, though the plaintiffs'

father's name was reflected in the cultivator's column, the

Appellate Court was not inclined to confer title for want of

clinching evidence. It is in this background, the Appellate

Court was not inclined to interfere with the conclusions and

reasons recorded by the Trial Court. Consequently, the

appeal is dismissed. These concurrent findings are under

challenge.

7. Heard learned counsel appearing for the plaintiffs

and perused the concurrent findings of the Courts below.

8. On examination of the averments made in the

plaint, it is clearly evident that plaintiffs are well aware of

the registered Gift Deeds executed in favour of the

defendant. In fact, the averments made at para No.2 of

the plaint clearly reveals that plaintiffs had the knowledge

of the Gift Deeds executed by Gangamma D/o Siddamma

and Siddappa in favour of Nanjappa Deskendra Swamiji in

respect of item Nos.1 and 2 properties and the said

Nanjappa Deskendra Swamiji, in turn, has gifted the item

Nos.1 and 2 in favour of the defendant. Both registered

Gift Deeds pertaining to item Nos.1 and 2 are dated

30.01.1968. Defendant is asserting title based on these

registered Gift Deeds and the same are unchallenged by

the plaintiffs for almost five decades. Even in the present

suit, the plaintiffs have only sought formal declaration of

title.

9. Even otherwise, the pleadings set up in the plaint

does not substantiate the claim of the plaintiffs in regard

to right and title over the suit lands. Except bald

averments in the plaint and the revenue records indicating

that plaintiffs' father's name was found in the cultivator's

column, there is absolutely no evidence on record

indicating that suit lands were joint family ancestral

properties and in the partition, these properties were

allotted to the plaintiffs' father. The plea that these

properties were allotted to the plaintiffs' father in the

partition is not substantiated by producing clinching

evidence.

10. Both Courts referring to the evidence led in by

the defendant and in absence of cogent and clinching

evidence led in by the plaintiffs, have proceeded to decline

to grant relief of declaration of title. Both Courts have also

taken cognizance of the fact that plaintiffs in the alternate

have also set up a plea of adverse possession. It is a trite

law that the first requisite condition to assert adverse

possession is that a party, who is asserting possession, has

to admit title of a party against whom plea of adverse

possession is set up. These concurrent findings are based

on rebuttal evidence led in by the defendant and in

absence of clinching evidence led in by the plaintiffs.

These concurrent findings are in accordance with law and

would not warrant any interference at the hands of this

Court under Section 100 of CPC.,

Therefore, no substantial question of law arises for

consideration in this appeal.

Accordingly, the appeal is dismissed.

In view of dismissal of the appeal, pending

interlocutory applications, if any, do not survive for

consideration and accordingly, they are dismissed.

Sd/-

JUDGE

NBM