Shri Appaso S/O Dattu Kesarkar vs Sdmt Shushila Wd/O Baburao Ghaste
2023 Latest Caselaw 227 Kant

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                               RSA No. 101267 of 2022


 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

       DATED THIS THE 4TH DAY OF JANUARY, 2023

                      BEFORE

        THE HON'BLE MR JUSTICE M.G.S. KAMAL

  REGULAR SECOND APPEAL NO. 101267 OF 2022 (POS)

BETWEEN:

   SHRI. APPASO S/O. DATTU KESARKAR,
   AGE: 62 YEARS, OCC. AGRICULTURE,
   R/O. GPC NO.135A, LAKHANAPUR VILLAGE,
   TQ. NIPPANI (OLD TALUKA CHIKODI),
   DIST. BELAGAVI.
                                            ...APPELLANT
(BY SRI. SHARAD V.MAGADUM, ADVOCATE)

AND:

    SMT. SHUSHILA WD/O BABURAO GHASTE,
    AGE: 76 YEARS, OCC. HOUSEHOLD WORKS,
    R/BY HER GENERAL POWER OF ATTORNEY HOLDER
    SON - SHRI SIDDAPPA S/O. BABURAO GHASTE,
    AGE: 35 YEARS, OCC. AGRICULTURE,
    R/O. GOUDAL VILLAGE, TQ. HUKKERI,
    DIST. BELAGAVI - 591309.
                                        ...RESPONDENT
(BY SRI. VITTHAL S.TELI, ADV. FOR
  C/RESPONDENT IN CP.NO.22571/2022)

     THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 24.06.2022
PASSED IN R.A.NO.14/2021 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS,
NIPPANI, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 15.04.2021, PASSED IN O.S.
NO.95/2009 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE
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                                      RSA No. 101267 of 2022


AND   JUDICIAL  MAGISTRATE     FIRST  CLASS,  NIPANI,
DECREEING THE SUIT FILED FOR VACANT POSSESSION.

    THIS APPEAL COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                          JUDGMENT

Appellant is before this Court being aggrieved by the

judgment and decree dated 15.04.2021 passed in

O.S.No.95/2009 on the file of the learned Principal Civil

Judge and JMFC, Nippani (hereinafter referred to as the

'Trial Court'), in and by which the Trial Court decreed the

suit for possession and directed the defendant to hand

over the vacant physical possession of the suit schedule

property within 3 months from the date of the order.

Aggrieved by the same, the defendant filed a regular

appeal in R.A.No.14/2021 before the learned Senior Civil

Judge and JMFC, Nippani (hereinafter referred to as the

'First Appellate Court'). On re-appreciating the merits of

the case the First Appellate Court has dismissed the

appeal confirming the judgment and decree passed by the

Trial Court. Being aggrieved by the same, the appellant is

before this Court.

RSA No. 101267 of 2022

2. The aforesaid suit in O.S.No.95/2009 filed by

the plaintiff on the premise that the suit schedule property

being a house property was her ancestral property

belonging to her father namely Sri. Kallappa Naik. That on

his demise, the plaintiff being the only legal heir

succeeded to the suit property and that she has been in

actual possession and enjoyment of the same.

2.1 That the defendant who is a stranger to

the family being in need of residential house, defendant

approached the plaintiff and the plaintiff had put the

defendant in possession of the suit property for a

period of 2 years and in that regard the defendant

agreed to pay a sum of Rs.38,000/-. In furtherance to

the same, the plaintiff executed an agreement on

26.09.2002. The defendant agreed to redeliver the

possession of the suit property after the expiry of the

agreed period. However, even after lapse of 3 years

from the date of agreement, the defendant did not

vacate and deliver the suit property.

RSA No. 101267 of 2022

2.2 It is alleged that the defendant had forged

his thumb impression and created a false, fabricated

document based on which he had made fraudulent

Varadi to the Gram Panchayath and had got his name

mutated in the revenue records in collusion with the

local authorities on 12.04.2006. Plaintiff had approached

and requested the defendant on several occasions to

vacate and hand over the vacant possession of the suit

property, but the defendant did not comply with the

request. The plaintiff learnt about the illegal entries in

the revenue records and immediately thereof filed the

above suit for possession.

3. In response, defendant filed written statement

denying the plaint averments. It is a specific case of the

defendant that the plaintiff had agreed to sell the suit

schedule property being VPC No.135A consisting of

dilapidated house and open space and had thus executed

an agreement of sale on 26.09.2002 for a sale

consideration of Rs.52,000/- of which the defendant had

RSA No. 101267 of 2022

paid earnest amount of Rs.38,000/-. That the plaintiff had

agreed to execute a deed of sale by receiving the balance

sale consideration of Rs.14,000/- on or before 30.11.2002.

The defendant had made the payment of Rs.14,000/- on

20.11.2002 and was thus put in possession of the suit

property.

3.1 That the plaintiff having received the

entire sale consideration had submitted a Varadi to the

panchayath authorities enabling mutation of the name

of the defendant in the revenue records. Accordingly,

the defendant has been in possession and enjoyment of

the suit property without any objections by the plaintiff

or anyone claiming through or under him.

3.2 That the defendant had expended a sum

of Rs.1,50,000/- for construction of house and he is

running a hotel business. He is using the same for

residence-cum-business purposes.

4. Based on the pleadings, the Trial Court framed

the following issues:

RSA No. 101267 of 2022

"1. Whether the plaintiff proves that, she is absolute owner of the suit schedule property?

2. Whether the plaintiff is entitled for vacant possession of suit schedule property from defendant?

3. Whether the plaintiff is entitled for the relief as sought for?

4. What order or Decree?"

4.1 Plaintiff examined herself as PW.1 and

exhibited 5 documents marked as Exs.P1 to P5. On the

other hand, defendant examined himself as DW.1 and

exhibited 9 documents marked as Exs.D1 to D9 and also

examined another witness as DW.2.

4.2 On appreciation of the evidence, the Trial

Court answered Issues No.1 to 3 in affirmative and

consequently decreed the suit as prayed for and thereby

directed the defendant to vacate and hand over the

vacant possession of the suit schedule property to the

plaintiff within a period of 3 months from the date of the

order. Being aggrieved by the same, the defendant filed

an appeal before the First Appellate Court.

RSA No. 101267 of 2022

5. On considering the grounds urged by the

defendant, the First Appellate Court framed the following

points for its consideration:

"1) Whether the appellant has made out sufficient grounds that trial court passed the judgment and decree erroneously, arbitrary and not appreciated the material facts, evidence and question of law?

2) Are there any grounds to interfere with the judgment of the trial court?

3) What order?"

5.1 On re-appreciating of the evidence, the

First Appellate Court dismissed the appeal and

confirmed the judgment and decree passed by the Trial

Court. Being aggrieved by the same, the defendant is

before this Court by filing this regular second appeal.

6. Sri. Sharad V.Magadum, learned counsel for the

appellant reiterating the grounds urged in the

memorandum of appeal submits that the Trial Court and

the First Appellate Court grossly erred in decreeing the

suit for possession without there being a prayer seeking

relief of declaration. It is his contention that a bare suit for

RSA No. 101267 of 2022

injunction or possession is not maintainable without

seeking relief of declaration. That this being the settled

position of law, the Trial Court and the First Appellate

Court not ought to have decreed the suit. That the

defendant was put in possession of the suit property

pursuant to an agreement of sale and his name was

mutated in the revenue records at the instance of the

plaintiff, thus, the defendant acquired the title over the

property. It is his further contention that the plaintiff not

having objected for mutation of name of the defendant in

the revenue records had thereby consented for transfer of

title in his favour. This being the factual position without

seeking relief of declaration, the plaintiff was not entitled

for possession. With this, he submits that a substantial

question of law arises in this matter requiring

consideration.

7. Per contra, Sri. Vitthal S.Teli, learned counsel

for the respondent/plaintiff submits that the plaintiff had

put the defendant in a permissive possession of the suit

RSA No. 101267 of 2022

property. Though the defendant claims to have taken

possession of the property pursuant to an agreement of

sale dated 26.09.2002, there is no mention of delivery of

physical possession by plaintiff in the said document. He

also submits that the said document being an un-

registered document, no legal protection either can be

claimed by the defendant. He submits that the Varadi was

made by the defendant in collusion of the local revenue

authorities and the same has been proved and established

in evidence. In that view of the matter, he submits that no

substantial question of law would arise for consideration.

8. Heard and perused records.

9. There is no dispute of the fact that the suit

schedule property belongs to the plaintiff and she having

inherited the same through her father. It is contended by

the plaintiff that she had inducted the defendant into the

suit property (for a sum of Rs.38,000/-) to be vacated and

handed over within a period of 2 years. Plaintiff specifically

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RSA No. 101267 of 2022

denies entering into any agreement of sale and claimed by

the defendant.

9.1 It is the contention of the plaintiff that the

Varadi was submitted and the mutation of name of the

defendant was obtained fraudulently in collusion with

the local authorities without the knowledge of the

plaintiff.

9.2 It is the case of the defendant that he had

entered into an agreement of sale with plaintiff for a

total consideration of Rs.52,000/-, of which, he had

paid a sum of Rs.38,000/- at the time of the agreement

and remaining amount was paid subsequently; that in

part performance of the said agreement, he was put in

possession of the property; that he has invested huge

amount for construction of a building thereon and he is

carrying a business of hotel as well.

9.3 The Trial Court taking into consideration of

the contention of the parties has held and has come to

the conclusion that the agreement based on which the

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RSA No. 101267 of 2022

defendant is claiming possession did not contain any

clause regarding delivery of possession; that the said

agreement is also not registered, as such, Section 53A

of the Transfer of Property Act is not attracted. The

Trial Court is also of the view that the defendant

though claiming to have been in possession of the

property in terms of an agreement of sale, cannot claim

title over the property without a proper and duly

executed and registered deed of conveyance. The Trial

Court has also held that mere entry in the revenue

records would not create any title in favour of the

defendant. The Trial Court has also taken note of the

fact that the defendant though has contested the suit

has neither sought for specific performance of the said

agreement nor has stated anything about his intention

to seek such relief for specific performance of

agreement. Since the defendant did not dispute the

title of the plaintiff, the Trial court held that the

defendant is in permissive possession of the property

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RSA No. 101267 of 2022

under the plaintiff and suit for possession was

maintainable, accordingly, decreed the suit as sought

for.

9.4 In the appeal, the First Appellate Court

has appreciated and reiterated the reasoning given by

the Trial Court and has dismissed the appeal confirming

the said judgment and decree passed by the Trial

Court.

10. In view of the above undisputed facts of the

matter, no error or illegality can be found with the

reasoning and the conclusion arrived at by the Trial Court

as well as the First Appellate Court. No substantial

question of law would arise for consideration. Accordingly,

the appeal is dismissed.

sd JUDGE

RH