Sri Rangaiah vs Smt Gowramma
2023 Latest Caselaw 527 Kant

                             1


     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 9TH DAY OF JANUARY, 2023

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                R.S.A.NO.239/2022 (DEC/INJ)

BETWEEN:

1.   SRI RANGAIAH,
     S/O DYAVAIAH,
     SINCE DEAD BY LRS.

1(a) SMT. KARIYAMMA,
     W/O RANGAIAH,
     AGED ABOUT 65 YEARS.

1(b). DYAVAIAH,
      S/O RANGAIAH,
      AGED ABOUT 39 YEARS.

1(c). THIMMAIAH,
      S/O RANGAIAH,
      AGED ABOUT 41 YEARS.

1(d). SRI SOMAIAH,
      S/O RANGAIAH,
      AGED ABOUT 39 YEARS.

1(e). SRI LOKESH,
      S/O RANGAIAH,
      AGED ABOUT 37 YEARS.

     ALL ARE R/AT NAGENAHALLY VILLAGE,
     JAVGAL HOBLI, ARASIKERE TALUK,
     HASSAN DISTRICT - 573 115.
                                              ...APPELLANTS

                  (BY SMT. VIDYA S, ADVOCATE)
                                 2


AND:

1.     SMT. GOWRAMMA,
       W/O LATE CHANNABASAPPA,
       AGED ABOUT 57 YEARS

2.     SRI KUMAR,
       S/O LATE CHANNABASAPPA,
       AGED ABOUT 43 YEARS.

       BOTH ARE R/AT NAGENAHALLY VILLAGE,
       JAVGAL HOBLI, ARASIKERE TALUK.
       HASSAN DISTRICT - 573 115.
                                                ...RESPONDENTS

      THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC, 1908
AGAINST THE JUDGMENT AND DECREE DATED 09.11.2021
PASSED IN RA.NO.4/2018 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND JMFC, ARSIKERE, DISMISSING APPEAL AND
CONFIRMING THE JUDGMETN AND DECREE DATED 09.10.2017
PASSED IN OS.NO. 171/2010 ON THE FILE OF THE ADDITIONAL
CIVIL JUDGE AND JMFC, ARASIKERE.

    THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                        JUDGMENT

This matter is listed for admission today. Heard the

learned counsel for the appellants.

2. This appeal is filed challenging the judgment and

decree dated 09.11.2021, passed in R.A.No.4/2018, on the file

of the Senior Civil Judge and JMFC, Arsikere.

3. The factual matrix of the case of the plaintiffs before

the Trial Court is that the plaintiffs are the owner in possession

and enjoyment of the suit schedule property. Plaintiff No.2 is

the son of plaintiff No.1. Husband of plaintiff No.1 late

Channabasappa had purchased suit schedule property from the

mother of defendant No.1 through registered sale deed dated

09.05.1972 for valuable consideration and from the date of

purchase, the said Channabasappa was in possession and

enjoyment over the same. After his death, the plaintiffs are in

possession and enjoyment of the suit schedule property. On the

basis of the sale deed, katha has been changed in the name of

late Channabasappa in M.R.No.19/1972-73 and the plaintiffs are

paying kandaya to the property and in the suit property, three

Neem tress are situated and the plaintiffs are growing maize

crop on the same. The defendants without having any right or

possession over the suit schedule property are interfering with

the possession, hence without any other option they have filed a

suit for the relief of declaration and for injunction.

4. The defendants appeared through their counsel and

filed the written statement contending that the survey number of

the suit schedule property is wrongly mentioned and the

boundary which is shown in the suit schedule property is tallied

with the boundary of re-Sy.No.60/8 to an extent of 1 acre 24

guntas, which is the property of the defendants. Hence, they

contended that the plaintiffs are intentionally showing wrong

boundary to grab the defendants property i.e., Sy.No.60/8. The

suit schedule property originally belongs to the grandmother of

defendant Nos.3 to 5 and the mother of defendant No.1. Based

on the pleadings, the Trial Court framed the issues with regard

to whether the plaintiffs are the owner of the suit schedule

property and in possession of the property and whether they are

entitled for the relief. The plaintiff No.2 examined himself as

P.W.1 and examined two witnesses as P.W.2 and P.W.3 and got

marked the documents at Exs.P.1 to 11. On the other hand,

defendant No.3 examined himself as D.W.1 and got marked the

documents at Exs.D.1 to 4 and examined another witness as

D.W.2. The Trial Court after considering both oral and

documentary evidence placed on record, answered issue No.1 in

affirmative in coming to the conclusion that the plaintiffs have

purchased the suit schedule property and denied the contention

of the defendants and answered issue No.2 as negative and

other issues as affirmative in coming to the occlusion that the

plaintiffs have purchased the property and schedule mentioned

in the sale deed is tallied with the possession and the plaintiffs

are in occupation and also taken note of evidence of D.W.1

admission and decreed the suit. The same is challenged before

the Appellate Court in R.A.No.4/2018.

5. The grounds urged in the appeal is that the Trial

Court committed an error in decreeing the suit and the Trial

Court has not considered Sy.No.60/8 and the plaintiffs are

claiming the right in respect of Sy.No.60/8 and the Trial Court

committed an error in taking note of the description of the

boundary mentioned in the suit and erroneously comes to the

conclusion that the boundaries prevail. The Appellate Court on

re-appreciation of both oral and documentary evidence placed on

record formed the point whether the Trial Court committed an

error in not properly appreciating the evidence and judgment is

perverse. The First Appellate Court considering both oral and

documentary evidence placed on record comes to the conclusion

that the evidence of the witnesses is properly appreciated by the

Trial Court and finding given by the Trial Court is not perverse.

Hence, the present second appeal is filed before this Court.

6. The main contention of the learned counsel for the

appellants is that the Trial Court and the Appellate Court failed

to take note of the material on record. The sale deed was

executed by the grandmother of defendant Nos.3 to 5 and

mother of defendant No.1 and the schedule property is actually

Sy.No.60/8 measuring 1 acre 24 guntas and Sy.No.36/2 is

measuring only 1 acre 19 guntas, which has neither been aware

nor proved by the plaintiffs and hence the Trial Court has

committed an error and the Appellate Court also committed an

error in concurring the finding of the Trial Court and hence it

requires interference of this Court and to frame the substantial

question of law.

7. Having heard the learned counsel for the appellants

and also on perusal of the material available on record, it is not

in dispute that the suit schedule property was purchased by the

father and husband of the plaintiffs in the year 1972. The

defendants also not disputes the very execution of the sale deed

by Sannamallamma, who is the grandmother of defendant Nos.3

to 5 and mother of defendant No.1. But the only contention of

the learned counsel for the appellants is that Sy.No.60/8 is in

respect of the suit schedule property and not Sy.No.36/2 and

also contend that the sale deed is executed in respect of

Sy.No.36/2 and not in respect of Sy.No.60/8 and both the

Courts have committed an error. Having considered the material

available on record, the Trial Court in page No.9 of the judgment

has taken note of the boundaries mentioned in the suit and also

the material on record and the documents which have been

produced by the plaintiffs and the defendants and also taken

note of the admission given by D.W.1 with regard to the sale of

the property by Sannamallamma in favour of the plaintiffs and

also delivering of the possession of suit schedule property by

sale deed dated 09.05.1972. The material discloses that the

boundaries mentioned is in respect of Sy.No.60/8 and when

D.W.1 was cross-examined and he said that he was not aware of

the existence of the neem trees and it is the contention of the

plaintiffs that there are three neem trees in the suit schedule

property and when he was not aware of existence of three neem

trees in the property, the Trial Court comes to the conclusion

that the plaintiffs are in possession of the property as mentioned

in the sale deed boundaries and the boundaries will prevail and

not the survey number and hence the Trial Court answered point

No.1 as affirmative that they have purchased the suit schedule

property which has been described in the sale deed.

8. The First Appellate Court on considering the grounds

urged in the appeal memo, formulated point Nos.1 and 2 and

comes to the conclusion that the Trial Court has rightly

appreciated the evidence available on record and apart from

that, taken note of in paragraph No.17 about the execution of

the sale deed by Sannamallamma on 09.05.1972 and also taken

note of the boundaries mentioned in the sale deed and

thereafter the khatha was also transferred in M.R.No.19/1972-

73. The Court has to take note of the material available on

record and also the boundaries mentioned in the sale deed and

the same has been discussed in paragraph No.18. In paragraph

No.19 admission given by D.W.1 in the cross-examination is

extracted and the answer given by D.W.1 clearly shows that

Sannamallamma was the owner of the property of both

Sy.No.36/2 and Sy.No.60/8 and though the survey number is

mentioned as Sy.No.36/2, but boundaries mentioned is in

respect of Sy.No.60/8. Having taken note of the said material

and also the admission given by D.W.1 in the cross-examination,

the Trial Court considered the material on record and hence the

Appellate Court also comes to the conclusion that the boundaries

mentioned in the suit schedule and the boundaries mentioned in

the report with regard to Sy.No.60/8 as per the Commissioner

report match with each other. Having taken note of the

Commissioner report with regard to suit schedule, the First

Appellate Court comes to the conclusion that the suit property

was given to the plaintiffs and the possession of the property

was also delivered in favour of the plaintiffs and the boundaries

which have been mentioned in the document prevails.

9. The Appellate Court also relied upon the judgment of

the Apex Court in the case of SHEODHYAN SINGH AND

OTHERS v. MST. SANICHARA KUER AND OTHERS reported

in AIR 1963 SC 1879, wherein the Apex Court discussed with

regard to the boundaries which have been mentioned in the

document. It is held that the mistake in the plot number must

be treated as a mere misdescription which does not affect the

identity of the property sold. The Appellate Court taken note of

the boundaries mentioned in the said deed and comes to the

conclusion that the Trial Court has considered the same,

particularly considered the description mentioned in the sale

deed and comes to the conclusion that the plaintiffs are the

absolute owner of the property and the same has been affirmed

by the Appellate Court.

10. The very contention of the learned counsel for the

appellants is that total extent of Sy.No.60/8 is 1 acre 24 guntas

and the property sold is only 1 acre 19 guntas and it is the claim

of the plaintiffs to the extent of 1 acre 19 guntas before the Trial

Court and not granted decree in respect of 1 acre 24 guntas.

When such being the case when the description of the sale deed

shows with regard to the boundaries, the boundaries will prevail

and hence, I do not find any error committed by the Trial Court

and the First Appellate Court to invoke Section 100 of CPC to

frame any substantial question of law and also not find any

perversity in the finding of the Trial Court and the First Appellate

Court and hence there is no merit in the second appeal.

11. In view of the discussions made above, I pass the

following:

ORDER

The appeal is dismissed.

Sd/-

JUDGE MD