Karnataka High Court
Shri. Honne Gowda vs Dyavaiah @ Ullikotta on 2 June, 2023
Bench: Jyoti Mulimani
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RSA No. 254 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JUNE, 2023
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
REGULAR SECOND APPEAL NO. 254 OF 2018 (DEC/INJ)
BETWEEN:
SHRI. HONNE GOWDA
S/O LATE SHRI NANJAIAH,
@ NANJE GOWDA,
AGED ABOUT 60 YEARS,
R/AT HANCHYA VILLAE,
KASABA HOBLI, MYSURU TALUK,
MYSORE DISTRICT-570002.
REPRESENTED BY GPA HOLDER
NAGARAJU.
...APPELLANT
(BY SRI.ADITHYA BHAT., ADVOCATE FOR
SRI.G S BHAT, ADVOCATE)
AND:
DYAVAIAH @ ULLIKOTTA
Digitally signed by SINCE DECEASED BY LRS,
THEJASKUMAR N
Location: HIGH
COURT OF 1. SMT.GOWRAMMA,
KARNATAKA
W/O LATE SRI.DYAVAIAH,
AGED ABOUT 56 YEARS,
R/AT HANCHYA VILLAGE,
RAMMANAHALLI POST,
MYSURU TALUK,
MYSURU DISTRICT - 570 002.
2. SMT. MAHADEVI
D/O LATE SRI DYAVAIAH,
AGE 41 YEARS,
S/O LATE MANDE NINGANNANA PUTTIAH,
AGED ABOUT 46 YEARS,
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RSA No. 254 of 2018
RESIDING AT HANCHYA VILLAGE,
RAMMANAHALLI POST,
MYSURU TALUK,
MYSURU DISTRICT - 570 002.
3. SMT. SHANTHI
W/O SRI KANTHA,
AGED ABOUT 39 YEARS,
RESIDING AT JODIKUPYA VILLAGE,
KUPYA POST-571 110,
T. NARASIPURA TALUK,
MYSURU DISTRICT.
4. SRI DYAVA
SON OF LATE SRI DYAVAIAH,
AGED ABOUT 37 YEARS,
RESIDING AT HANCHYA VILLAGE,
KASABA HOBLI, MYSURU TALUK,
MYSURU DISTRICT - 570 002.
5. SRI MAADHA
SON OF LATE SRI DYAVAIAH,
AGED ABOUT 35 YEARS,
RESIDING AT HANCHYA VILLAGE,
KASABA HOBLI, MYSURU TALUK,
MYSURU DISTRICT - 570 002.
6. SMT. CHIKKATHAYI
D/O LATE DYAVAIAH,
AGED ABOUT 31 YEARS,
RESIDING AT HANCHYA VILLAGE,
KASABA HOBLI, MYSURU TALUK,
MYSURU DISTRICT - 570 002.
7. SRI SWAMY
S/O LATE SRI GOPALLI,
AGED ABOUT 29 YEARS,
RESIDING AT HANCHYA VILLAGE,
KASABA HOBLI, MYSURU TALUK,
MYSURU DISTRICT - 570 002.
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RSA No. 254 of 2018
8. DYAVAIAH @ CHOTRA
S/O LATE KADA DYAVAIAH,
AGED ABOUT 60 YEARS,
RESIDING AT HANCHYA VILLAGE,
KASABA HOBLI, MYSURU TALUK,
MYSURU DISTRICT - 570 002.
MARI GOWDA
SINCE DECEASED BY LRS,
9. SMT. GOWRAMMA
W/O LATE SRI MARI GOWDA,
AGED ABOUT 42 YEARS,
RESIDING AT HANCHYA VILLAGE,
KASABA HOBLI, MYSURU TALUK,
MYSURU DISTRICT - 570 002.
10. SMT. NAGARATHNA
D/O LATE SRI MARI GOWDA,
W/O SRI JAYARAM,
AGED ABOUT 31 YEARS,
R/AT HUNUGANAHALLI HUNDI VILLAGE,
T.NARASIPURA TALUK,
MYSURU DISTRICT - 599 115.
11. SMT. ANITHA
D/O LATE SRI MARI GOWDA,
W/O SRI BHAGAVANTHA,
AGED ABOUT 22 YEARS,
RESIDING AT MELAHALLI VILLAGE,
MYSURU TALUK - 570 028.
MYSURU DISTRICT.
12. SRI NAGARAJU
S/O LATE SRI MARI GOWDA,
AGED ABOUT 22 YEARS,
RESIDING AT MELAHALLI VILLAGE,
MYSURU TALUK-570028.
MYSURU DISTRICT.
13. SMT. SANNATHAYAMMA
W/O LATE SRI CHIKKE GOWDA,
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RSA No. 254 of 2018
DAUGHTER-IN-LAW OF SRI NANJAIAH @ NANGE
GOWDA,
AGED ABOUT 46 YEARS,
RESIDING AT HANCHYA VILLAGE,
KASABA HOBLI, MYSURU TALUK,
MYSURU DISTRICT - 570 002.
14. SMT. MANJULA
D/O LATE SRI CHIKKE GOWDA, @ NANJE GOWDA,
AGED ABOUT 23 YEARS,
RESIDING AT HANCHYA VILLAGE,
KASABA HOBLI, MYSURU TALUK,
MYSURU DISTRICT - 570 002.
15. SMT. SUVARNA
D/O LATE SRI CHIKKE GOWDA, @ NANJE GOWDA,
AGED ABOUT 21 YEARS,
RESIDING AT HANCHYA VILLAGE,
KASABA HOBLI, MYSURU TALUK,
MYSURU DISTRICT - 570 002.
16. SRI SHIVASWAMY
S/O LATE SRI CHIKKE GOWDA @ NANJE GOWDA,
AGED ABOUT 27 YEARS,
RESIDING AT HANCHYA VILLAGE,
KASABA HOBLI, MYSURU TALUK,
MYSURU DISTRICT - 570 002.
17. SUMA
D/O LATE SRI CHIKKE GOWDA @ NANJE GOWDA,
AGED ABOUT 19 YEARS,
RESIDING AT HANCHYA VILLAGE,
KASABA HOBLI, MYSURU TALUK,
MYSURU DISTRICT - 570 002.
18. SMT. SUSHEELAMMA
W/O LATE SRI THIMME GOWDA,
AGED ABOUT 44 YEARS,
RESIDING AT HANCHYA VILLAGE,
KASABA HOBLI, MYSURU TALUK,
MYSURU DISTRICT - 570 002.
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RSA No. 254 of 2018
19. SRI KUMARA
S/O LATE SRI THIMME GOWDA,
AGED ABOUT 27 YEARS,
RESIDING AT HANCHYA VILLAGE,
KASABA HOBLI, MYSURU TALUK,
MYSURU DISTRICT - 570 002.
20. SMT. JYOTHI
W/O LATE SRI THIMME GOWDA,
AGED ABOUT 23 YEARS,
RESIDING AT HANCHYA VILLAGE,
KASABA HOBLI, MYSURU TALUK,
MYSURU DISTRICT - 570 002.
21. SMT. REKHA
W/O LATE SRI THIMME GOWDA,
AGED ABOUT 21 YEARS,
RESIDING AT HANCHYA VILLAGE,
KASABA HOBLI, MYSURU TALUK,
MYSURU DISTRICT - 570 002.
...RESPONDENTS
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC., SEEKING CERTAIN RELIEFS.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Sri.Adithya Bhat., learned counsel on behalf of
Sri.G.S.Bhat., for the appellant has appeared in person.
2. This is an appeal from the Court of III Addl. District
Judge, Mysuru.
RSA No. 254 of 2018
3. For the sake of convenience, the parties shall be
referred to as per their status and ranking before the Trial
Court.
4. The brief facts are these:
The plaintiff contended that land measuring to the extent
of 05 Acres 03 Guntas in Sy.No.45 situated at Hanchya Village,
Kasaba Hobli, Mysore Taluk was granted to one Sri.Dyava by
the Government in the year 1936. In the year 1945, he
executed a Gift Deed in respect of Sy.No.45 in favor of his
sister Smt.Lingamma to an extent of 01 Acre. It is said that the
original plaintiff Sri.Nangegowda @ Nanjaiah purchased the
property from Smt.Lingamma in the year 1956. The survey
number mentioned in the sale deed is 45. The plaintiff averred
that the defendants are the children of Dyava and they tried to
interfere with his peaceful possession and enjoyment of the
property. Hence, he was constrained to take shelter under the
Court of Law and sought for the relief of declaration and
consequential relief of injunction.
After service of the suit summons, defendants 1 & 2
appeared through their counsel and filed a detailed written
RSA No. 254 of 2018
statement and denied the plaint averments. They contended
that the schedule land is granted land and attracts the
provisions of the P.T.C.L Act and as such it cannot be alienated
to anyone except with prior permission of the Government.
They disputed the Gift Deed and the sale deed. Among other
grounds, they prayed for the dismissal of the suit.
5. Based on the above pleadings, the Trial Court
framed the Issues.
The original plaintiff Nangegowda was reported dead
during the pendency of the suit. Hence, his legal
representatives were brought on record. Thereafter, the legal
representative No.2 of the original plaintiff was also reported
dead and hence, his legal representatives were brought on
record.
The GPA holder of the first legal representative of the
plaintiff was examined as PW1 and two more witnesses were
examined as PW2 & 3 and produced twelve documents which
were marked at Exs.P.1 to P12. On the other hand, the second
defendant examined as DW1 and examined a witness as DW2
RSA No. 254 of 2018
and produced three documents which were marked at Exs.D.1
to D3.
On the trial of the action, the Trial Court declined to grant
the relief of declaration and consequently, dismissed the suit.
Aggrieved by the Judgment and Decree of the Trial Court, the
plaintiffs preferred an appeal before the First Appellate Court.
On appeal, the Appellate Court confirmed the Judgment and
Decree of the Trial Court. Hence, this Regular Second Appeal is
filed under Section 100 of CPC.
6. Sri. Adithya Bhat., learned counsel for the appellant
submits that the Judgments and Decrees of the Trial Court and
the First Appellate Court are opposed to the law, and evidence
on record, and therefore, the same are liable to be set aside.
Next, he submits that the Judgments and Decrees of the
Courts are contrary to the documents produced by the plaintiff
and especially, Ex.P.5 Gift Deed dated 02.01.1945. The said
Gift Deed was executed in favor of Smt.Lingamma and in turn,
she has sold the suit property in favor of the appellant's father
under the Registered Sale Deed dated:11.06.1956 as per
Ex.P.1. It is also submitted that these two documents are 30
RSA No. 254 of 2018
years old documents and there is a presumption under Section
90 of Indian Evidence Act.
A further submission is made that the Courts have
erroneously held that the suit schedule property is a granted
land and the same is hit by the PTCL Act.
Learned counsel vehemently contended that the Courts
have erroneously and wrongly held that Smt.Lingamma is not
the owner of the property solely on the ground that her name
was not entered in the Revenue Records. It is also submitted
that the courts have erred in concluding that the sale deed is a
sham document.
Learned counsel further submits that the findings of the
Trial Court with regard to the new Sy.No.346 is wholly
untenable in law. Counsel also submits that the defendants
never pleaded about the same.
Lastly, he submits that viewed from any angle, the
Judgments and Decrees of the Courts are unsustainable in law.
Therefore, this Regular Second Appeal raises substantial
questions of law and hence the same may be admitted.
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RSA No. 254 of 2018
7. Heard, the contentions urged on behalf of the
appellant and perused the Judgments and Decrees of the Trial
Court and the First Appellate Court with utmost care.
The facts have been sufficiently stated and the same does
not require reiteration.
The base for a claim of declaration is Ex.P.2. It is the case
of the plaintiff that his vendor Smt.Lingamma had acquired the
property under the Gift Deed which is said to have been
executed by her brother Dyava. She has sold the property in
his favor. Ex.P.1 is the sale deed that appears to have been
executed by Smt.Lingamma in favor of the plaintiff. The Trial
Court framed as many as five issues and the first issue relates
to proof of title and ownership over the suit schedule property.
Suffice it to note that the plaintiff produced the Tippani
Uthar. The same is marked as Ex.P.2. A careful perusal of the
judgment and decree depicts that the Trial Judge extenso
referred to the same and concluded that Sy.No.45 was changed
into Sy.No.346 since 16.05.1936. As already noted above, the
plaintiff is claiming title over the property under the registered
sale deed dated 11.06.1956. Ex.P.1 is the registered sale deed
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RSA No. 254 of 2018
and relates to Sy.No.45. There is no mention of survey number
346. Furthermore, the plaintiff himself has admitted that
Sy.No.45 has been changed into Sy.No.346 way back in the
year 1936. An attempt is made on behalf of the appellant to
contend that due to a mistake, rectification is not carried out.
In my view, the contention about the same must necessarily
fail. It is pivotal to note that no attempt was made by the
plaintiff's vendor to enter her name in the revenue records.
Sri.Adithya Bhat., learned counsel appearing on behalf of
the appellant in presenting his arguments strenuously urged
that the finding with regard to the change of survey number
and holding that documents Exs.P.1 & 2 are sham documents
are totally unsustainable in law. He argued by saying that the
defendants did not raise any plea with regard to the change in
survey number. A further attempt is also made on behalf of the
appellant to contend that in Exs.D.2 & 3 that are Mortgage
Deeds executed by defendants and they have shown the survey
number as 45 instead of 346.
A good deal of argument is addressed about the change
in Survey numbers. I may venture to say that it is the plaintiff
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RSA No. 254 of 2018
who has approached the Court seeking a declaration that he is
the absolute owner of the property in question. He should
plead, prove and establish his case. The law is well settled that
the plaintiff should not depend upon the weakness of the
defendants. Even otherwise also, the mentioning of survey
number 45 in the Mortgage Deeds, has no relevance.
The Trial Court rightly held that the plaintiff has failed to
prove & establish that he is the absolute owner of the suit
schedule property and the defendants are causing interference.
Hence, the Trial Court dismissed the suit and the First Appellate
Court confirmed the Judgment & Decree of the Trial Court.
In my view, the findings recorded by both Trial Court is
either vitiated by non-consideration of relevant evidence or by
an erroneous approach to the matter. The First Appellate Court
on re-appreciation of the evidence, has rightly rejected the suit
and confirmed the Judgment and Decree of the Trial Court.
I am only able to say this much that the First Appellate
Court has given the finding in proper perspective.
It is perhaps well to observe that after the 1976
amendment, the scope of Section 100 of the CPC has been
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RSA No. 254 of 2018
drastically curtailed and narrowed down. Under Section 100 of
the Code of Civil Procedure 1908 (as amended in 1976) the
jurisdiction of the Trial Court and the First Appellate Court High
Court to interfere with the judgment of the Court below is
confined to hearing substantial questions of law. Interference
with a finding of a fact by the High Court is not warranted if it
involves re-appreciation of the evidence.
No substantial question of law arises for consideration in
this appeal. As a result, I find no merit in this appeal, and
accordingly, it is dismissed at the stage of admission.
No order as to costs.
Sd/-
JUDGE
TKN
