Karnataka High Court
Sri Manja Setty vs Smt Chikkamma on 6 June, 2023
Bench: Shivashankar Amarannavar
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RSA No. 2556 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
REGULAR SECOND APPEAL NO. 2556 OF 2011 (DEC/INJ)
BETWEEN:
SRI MANJA SETTY,
S/O LATE THOTTALA SETTY,
AGED ABOUT 52 YEARS,
R/A GULUVINA ATTIGUPPE,
HOSA AGRAHARA HOBLI,
K R NAGAR TQ,
MYSORE DIST.
...APPELLANT
(BY SRI. GURUPRASAD B R.,ADVOCATE)
AND:
1. SMT CHIKKAMMA
W/O.SOMASETTY,
AGED ABOUT 56 YEARS,
R/A HASSAN-MYSORE ROAD,
Digitally signed by
HOLENARASIPUR TOWN,
LAKSHMINARAYANA HASSAN DIST.
MURTHY RAJASHRI
Location: HIGH
COURT OF SINCE DEAD BY HER LRs
KARNATAKA
1(a) SRI P.SOMA SETTY,
S/O LATE. PAVADA SETTY,
AGED ABOUT 81 YEARS,
2(b) SRI. RAVIKUMAR.K.G.
ADOPTED SON OF P.SOMA SETTY,
AGED ABOUT 27 YEARS,
BOTH ARE R/O BANASHANKARI STREET,
HOLENARASIPURA TOWN,
HASSAN DIST.
...RESPONDENTS
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RSA No. 2556 of 2011
(BY SRI. G.K. BHAT, SENIOR COUNSEL ALONG WITH
SMT. SUDHA.D, ADVOCATE FOR R1(A-B))
THIS RSA IS FILED UNDER SEC.100 OF CPC PRAYING TO
SET ASIDE THE JUDGMENT AND DECREE DATED 19.08.2011
PASSED IN R.A.NO.406/2010 ON THE FILE OF THE I ADDL.
DISTRICT JUDGE, MYSORE, ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGMENT AND DECREE DATED
02.07.2010 PASSED IN O.S.NO.559/2007 ON THE FILE OF THE
CIVIL JUDGE (SR.DN) K.R.NAGAR AND ETC.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. The plaintiff has filed this appeal praying to
set-aside the judgment and decree dated 19.08.2011
passed by the Court of I Additional District Judge, Mysuru
in R.A.No.406/2010.
2. The parties will be referred to by their rankings
as per the Trial Court.
3. The appellant was the plaintiff and the
respondent was the defendant in O.S.No.559/2007 on the
file of the Civil Judge (Sr.Dn.) and J.M.F.C, K.R.Nagar.
The said suit was filed for relief of declaration of title and
for permanent injunction. The said suit was earlier filed in
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the Court of Civil Judge (Jr.Dn.), K.R.Nagar and registered
as O.S.No.287/1999 and it was filed seeking only relief of
perpetual injunction. Thereafter, the plaintiff got amended
the plaint seeking the relief of declaration of title. On the
ground of pecuniary jurisdiction, the said plaint came to be
returned to the plaintiff and it was re-presented in the
Court of Civil Judge (Sr.Dn.) and J.M.F.C., K.R.Nagar and
numbered as O.S.No.559/2007.
4. The subject matter of the suit comprises of two
agricultural lands having a common boundary, bearing
Sy.No.137/1A measuring 1 acre 5 guntas and
Sy.No.137/1B measuring 16 guntas situated in Guluvina
Attiguppe, Hosagrahara Hobli of K.R.Nagar Taluk.
5. In the plaint, the plaintiff claimed to be the
owner of the suit schedule property having inherited the
same from his parents. He subsequently amended the
plaint stating that he purchased the suit schedule property
from one Sri.B.Swamy Setty and Sri.Basava Setty under a
registered sale deed dated 22.07.1985.
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6. It is stated in the plaint that the defendant
even though had no right to the suit schedule property,
filed a petition before the Tahsildar, K.R.Nagar in
R.R.T.No.1/1999-2000 and the Tahsildar, without verifying
the documents allowed the same and changed the Khata
to the name of the defendant. Alleging that the defendant
tress-passed into the suit schedule property, the plaintiff
filed a suit for permanent injunction. Thereafter, as
referred supra, he got amended the plaint and sought the
relief of declaration of title.
7. The defendant in her written statement, apart
from denying the case of the plaintiff has stated that on
08.08.1978 she purchased 1 acre 10 guntas of land in
Sy.No.137/1 and 20 guntas of land in Sy.No.138/3 from
the original owner Smt.Basamma, W/o Thotlappa Setty
and her brother Sri.Basappa Setty, S/o
Sri.Doddabasavayya Setty. She has stated that the
boundaries are of the lands so purchased by her and also
stated that she is in possession of the same, since the
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date of purchase. She admitted filing of the petition in
R.R.T.No.1/1999-2000 and the order passed by the
Tahsildar. She has denied the correctness of the
boundaries given in the plaint schedule.
8. The defendant has filed the additional written
statement in relation to the amendment brought to the
plaint seeking relief of declaration. In it, she has stated
that she is the absolute owner of the suit property having
purchased it from the mother and brother-in-law of the
plaintiff under a registered sale deed.
9. On the basis of the said pleadings, the Trial
court framed the following issues and additional issues:
Issues:
"(1) Whether the plaintiff proves that he is in
lawful possession and enjoyment of the suit
schedule property as on the date of filing this
suit?
(2) Whether the plaintiff further proves the
alleged interference by the defendant with his
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peaceful possession and enjoyment of the suit
schedule property?
(3) What relief or decree the parties are entitled
for?
Additional Issues:
(1) Does the plaintiff prove that he is the
absolute owner of the suit schedule property?
(2) Does the defendant prove that he is the
owner of the suit schedule properties,
having purchased the same from the
mother and brother-in-law of the plaintiff,
under a registered sale deed and he is in
possession and enjoyment of the same?
(3) Does the defendant prove that the market
value of the suit schedule property exceed
the pecuniary jurisdiction of this Court and
this Court has no jurisdiction to try this
suit?"
10. The plaintiff has been examined as PW1 and got
marked the documents as Exs.P1 to P45. The defendant's
Power of Attorney who is her husband has been examined
as DW1 and got marked the documents as Exs.D1 to D17.
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The Trial Court after hearing the arguments of both sides
and appreciating the oral and documentary evidence has
answered issue Nos.1 and 2 and additional issue No.1 in
the affirmative and additional issue No.2 in the negative
and held that the additional issue No.3 does not arise for
consideration and decreed the suit.
11. Aggrieved by the judgment and decree passed
by the Trial Court, the defendant filed an appeal in
R.A.No.406/2010 before the I Additional District Judge,
Mysuru (First Appellate Court).
12. The First Appellate Court after hearing the
arguments has formulated the following points for
consideration:
"(1) Is it necessary to receive the documents
produced with IA-6 filed under Order 41 Rule 27
CPC?
(2) Is it necessary to appoint a commissioner as
prayed for by the defendant - appellant through
I.A-3 to elucidate the matter in dispute in this
case?
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(3) Whether the plaintiff has established his title
and possession in respect of a property with the
description given in the plaint schedule?
(4) Whether the plaintiff is entitled to the reliefs
prayed for?
(5) Whether the judgment and decree of the Trial
Court call for interference?"
13. The First Appellate Court answered point Nos.1
to 4 in the negative and allowed the appeal and set-aside
the judgment and decree passed by the Trial Court and
dismissed the suit of the plaintiff. The plaintiff has
challenged the judgment and decree passed by the First
Appellate Court in this second appeal.
14. This second appeal came to be admitted to
consider the following substantial question of law:
"Whether the Lower Appellate Court has
committed an error in allowing the appeal and
dismissing the suit by ignoring the admission
made by D.W.1 that the appellant is in possession
and enjoyment of the suit schedule property and
the suit schedule property is entirely different
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from the property mentioned in the written
statement?"
15. Heard the arguments of learned counsel for
the appellant and learned counsel for the respondents.
16. Learned counsel for the appellant would
contend that the appellant - plaintiff has inherited the
property bearing Sy.No.137/1A, measuring 1 acre
5 guntas from his mother Smt.Basamma, W/o
Sri.Thotalappa Setty and purchased the property bearing
Sy.No.137/1B, measuring 16 guntas under the sale deed -
Ex.P27 dated 22.07.1985 from one Sri.B.Swamy setty and
his father Sri.Basava Setty, S/o Kenga Setty.
17. He contend that the name of the mother of the
plaintiff has been mutated in the index of lands ie., Form
No.5 (Ex.P6) to an extent of 1 acre 5 guntas in
Sy.No.137/1A. He places reliance on Ex.P10 -
M.R.No.99/1979-80 - mutation in his name in respect of
Sy.No.137/1A measuring 1 acre 5 guntas and also Ex.P23
- index of lands, wherein, the name of the plaintiff has
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been mutated as he inherited the same after the death of
his mother - Smt.Basamma to the property bearing
Sy.No.137/1A measuring 1 acre 5 guntas.
18. It is further submitted that the name of the
plaintiff has been mutated as per the sale deed - Ex.P27
and M.R.No.10/1985-86 (Ex.P15) and R.T.Cs at Ex.P9. He
contends that the defendant kept quiet from 1978 till 1999
and only in the year 1999, she got her name entered to
the property bearing Sy.Nos.137/1A and 137/1B as per
the order passed by the Tahsildar (Ex.P26).
19. He submitted that there is no basis for entry of
name of the defendant to property bearing Sy.No.137/1B
measuring 16 guntas. He contends that the defendant has
not purchased 16 guntas of land in Sy.No.137/1B under a
sale deed - Ex.D3. He contends that in the sale deed -
Ex.D3, the property sold in Sy.No.137/1 measures 1 acre
10 guntas, but the name of Smt.Basamma has been
entered to an extent of 1 acre 5 guntas in Sy.No.137/1A.
He contends that DW1 has admitted the possession of the
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plaintiff over the suit schedule property within the
boundaries as mentioned in the plaint.
20. He places reliance on the provision of Section
110 of the Evidence Act, 1872 contending that the
question whether a person is the owner of anything of
which he is shown to be in possession, the burden of
proving that he is not the owner is on the person who
affirms that he is not the owner.
21. On that point, he places reliance on the decision
of the Hon'ble Apex Court in the case of Chief
Conservator of Forests, Govt. of A.P. Vs. Collector
and Others reported in (2003) 3 SCC 472.
22. Learned counsel for respondent would contend
that initially suit was filed for the relief of injunction and
subsequently the plaint came to be amended and the relief
of declaration has been sought. The plaintiff claimed the
property through inheritance from his parents in
paragraph No. 2 of the plaint and subsequently in the
amended paragraph No. 2-A he claims the property having
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purchased under sale deed dated 22.07.1985. The
pleadings are inconsistent. Defendant purchased the
property bearing survey No. 137/1 measuring 1 acre 10
guntas and survey No. 138/3 measuring 28 guntas under
sale deed at Ex.D.3 executed by mother of plaintiff,
namely, Basamma and one Basappa Shetty - brother of
said Basamma. He further contends that the name of the
plaintiff came to be mutated to the suit schedule
properties by virtue of mutation at M.R. No. 9/1999-00
(Ex.D.4) as per the order of the Tahsildar (Ex.P.26). He
contends that the plaintiff has failed to establish his title
over the suit schedule properties. The admissions
contained in the cross-examination of D.W.1 is stray
admission and on that basis no relief can be granted to the
plaintiff. The plaintiff failed to prove his title over the suit
schedule properties. The first appellate Court taking into
consideration of the evidence on record has rightly come
to the conclusion that the plaintiff has failed to prove his
title and possession over the suit schedule properties.
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23. The plaintiff claimed relief of declaration and
injunction in respect of two properties having common
boundaries, one bearing survey No. 137/1A measuring 1
acre 5 guntas and another survey No. 137/1B measuring
16 guntas in Guluvina Attiguppe, Hosanagara Hobli, K.R.
Nagar taluk having the following boundaries.
East : Lands of Ramegowda
West : Lands of Kullasetty
South : Lands of Javaregowda and
North : Lands of Ningappasetty
The plaintiff claimed that these properties are inherited by
him from his parents in paragraph No. 2 of his plaint. In
the amended plaint at paragraph No. 2A he claims to have
purchased the said two properties by virtue of sale deed
dated 22.07.1985 from B. Swamy Shetty and Basava
Shetty. The documents produced by the plaintiff are not
consistent with his pleadings. In Ex.P.6 - index of lands
the name of Basamma has been mutated to an extent of 1
acre 5 guntas in survey No.137/1A and the name of
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RSA No. 2556 of 2011
Basappa Shetty son of Annappa Shetty has been mutated
to property bearing No. 137/B to an extent of 16 guntas.
In Ex.P.23 - index of lands of survey No. 137/1A
measuring 1 acre 5 guntas the name of plaintiff has been
mutated as he inherited the same from his mother
Basamma wife of Thottalappa. Mother of plaintiff
Basamma wife of Thottalappa and her brother Basappa
Shetty son of Dodda Basavaiah have executed sale deed
dated 08.08.1978 (Ex.D.3) in favour of defendant -
Chikkamma in respect of property bearing survey No.
137/1A measuring 1 acre 10 guntas and property bearing
survey No.138/3 measuring 20 guntas. Even though an
extent of 1 acre 5 guntas is entered in the name of said
Basamma - mother of the plaintiff, she has executed sale
deed to an extent of 1 acre 10 guntas in favour of the
defendant. The plaintiff claims that he has inherited 1 acre
5 guntas of land in survey No. 137/1A. Mother of plaintiff
sold the said property bearing survey No. 137/1A
measuring 1 acre 10 guntas. Therefore, plaintiff's mother
is not having any title to the said property which was sold
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under sale deed - Ex.D.3 to the defendant. Therefore, the
plaintiff cannot inherit any property from his mother in
survey No. 137/1A measuring 1 acre 5 guntas. The name
of defendant has been mutated to the property bearing
survey No. 137/1A measuring 1 acre 5 guntas under MR
No. 9/1999-2000 (Ex.D4). Therefore the plaintiff is not
having any title over the property bearing survey No.
137/1A measuring 1 acre 5 guntas as claimed by him.
24. Plaintiff claims that he purchased 16 guntas of
land under sale deed dated 22.07.1985 (Ex.P.27) from one
B. Swamy Shetty and his father Basava Shetty son of
Kenga Shetty. The plaintiff purchased two properties
under sale deed Ex.P.27 i.e. survey No. 137/1B measuring
16 guntas and 138/2 measuring 22 guntas. Name of
plaintiff has been mutated as per M.R. 10/1985-86
(Ex.P.21) and his name is entered in column No. 9 in RTC
of survey No. 137/1B measuring 16 guntas (Ex.P.9). As
per Ex.P.6 - index of lands survey No. 137/1B to an extent
of 16 guntas is in the name of Basappa Shetty son of
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RSA No. 2556 of 2011
Annappa Shetty. The plaintiff has purchased the suit
survey No. 137/1B measuring 16 guntas from one Swamy
Shetty and Basava Shetty son of Kenga shetty. There are
no documents produced by the plaintiff to show that his
vendors were owners having possession over the property
bearing survey No. 137/1B measuring 16 guntas. The
documents produced by the plaintiff in Ex.P.6 show that
one Basava Shetty son of Annappa Shetty is the owner of
survey No. 137/1B measuring 16 guntas. Therefore the
plaintiff has failed to prove that his vendor is having title
for sale of property bearing No. 137/1B measuring 16
gunts. The defendant has not purchased the property
bearing survey No. 137/1B measuring 16 guntas. Name of
the defendant came to be mutated to property bearing
survey No. 137/1B measuring 16 guntas as per order
passed by the Tahsildar (Ex.P.26) and M.R. 9/1999-2000
(Ex.D.4). The defendant has also not produced any
documents to claim his title over property bearing survey
No. 137/1B measuring 16 guntas. The properties
purchased by the defendant under Ex.D.3 sale deed are
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RSA No. 2556 of 2011
survey No. 137/1B measuring 1 acre 10 guntas and
survey No. 138/3 measuring 20 guntas. Said sale deed
does not include property bearing survey No. 137/1B
measuring 16 guntas. Considering all these aspects the
first appellate Court has held that the plaintiff has failed to
prove his title and possession over the suit schedule
properties.
25. Learned counsel for appellant - plaintiff submits
that D.W.1 in his cross-examination had admitted the
possession of the plaintiff over the suit schedule
properties. Said admission of D.W.1 in the cross-
examination reads as under:
"£Á£ÀÄ ºÁdgÀÄ¥Àr¹gÀĪÀAvÀ Dgï.n.¹. 137:1(J)UÉ ¸ÀA§AzsÀ¥ÀnÖzÀÄÝ
JAzÀgÉ ¸Àj. PÀæAiÀÄ¥ÀvÀæzÀ°è : CAzÀgÉ ¤r-3 gÀ°è ºÉýgÀĪÀAqÀ
ZÉPÀÄ̧A¢ ªÀÄvÀÄÛ ¸ÀªÉð £ÀA§gÀÄ ¸ÀjAiÀiÁVzÉ. ¥ÉÆÃqÀÄ «AUÀqÀuÉAiÀiÁzÀ
¸ÀAzÀ¨sÀðzÀ°è £ÁªÀÅ £ÀªÀÄä PÀæAiÀÄ¥ÀvÀæªÀ£ÀÄß PÉÆlÄÖ ¥ÉÆÃqÀÄ
ªÀiÁr¹PÉÆAr®è JAzÀgÉ ¸Àj. ¥ÀƪÀðPÉÌ gÁªÉÄÃUËqÀgÀ d«ÄãÀÄ,
¥À²ÑªÀÄPÉÌ PÀļÀîAiÀıÉnÖAiÀÄ d«ÄãÀÄ, zÀQëtPÉÌ eÁgÉÃUËqÀgÀ d«ÄãÀÄ,
GvÀÛgÀPÉÌ ¤AUÀ¥Àà±ÉnÖ gÀªÀgÀ, d«ÄãÀÄ. ªÉÄîÌAqÀ ZÉPÀÄ̧A¢AiÀÄ°è £ÀªÀÄä
d«ÄãÀÄ M¼À¥ÀqÀĪÀÅ¢®è JAzÀgÉ ¸Àj. ªÉÄÃ¯É ºÉýzÉ ZÉPÀÄ̧A¢UÉ
M¼À¥ÀnÖgÀĪÀ d«ÄãÀÄ £À£Àß ¸Áé¢üãÀzÀ°è®è JAzÀgÉ ¸Àj. ªÉÄÃ¯É ºÉýzÉ
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RSA No. 2556 of 2011
ZÉPÀÄ̧A¢AiÀÄ°è §gÀĪÀ d«ÄãÀ£ÀÄß ªÁ¢ ªÀÄAd±ÉnÖ G¼ÀĪÉÄ
ªÀiÁqÀÄwzÁÝjAzÀgÉ ¸Àj. £À£Àß PÀæAiÀÄzÁgÀgÀÄ §¸ÀªÀÄä ªÁ¢AiÀÄ vÁ¬Ä
JAzÀgÉ ¸Àj. ¸ÀªÉð £ÀA. 138:3 PÉÌ £ÁªÀÅ ºÁdgÀÄ¥Àr¹gÀĪÀ PÀæAiÀÄ
¥ÀvÀæ ¸ÉÃjzÁÝVgÀÄvÀÛzÉ."
26. Above said admission given by D.W.1 is a stray
admission. What he has stated is his property does not
come within the boundary suggested to him and he is not
in possession of the property boundaries of which are
suggested to him. Merely because he has admitted that
the plaintiff is in possession of the properties within the
boundaries suggested to him, it does not establish the
lawful possession of the plaintiff over the suit schedule
properties as he has failed to prove his title over the said
properties.
27. The decision relied upon by the learned counsel
for plaintiff in the case of Chief Conservator of Forests
(supra) does not help the plaintiff to establish his title
over the suit schedule properties. The paragraphs relied
upon by the learned counsel for appellant are paragraphs
Nos. 19 and 20 and they read thus:
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"19. Section 110 of the Evidence Act reads thus:
"110. Burden of proof as to ownership.- When
the question is whether any person is owner of
anything of which he is shown to be in possession,
the burden of proving that he is not the owner is on
the person who affirms that he is not the owner."
20. It embodies the principle that possession of a
property furnishes prima facie proof of ownership of
the possessor and casts burden of proof on the party
who denies his ownership. The presumption, which
is rebuttable, is attracted when the possession is
prima facie lawful and when the contesting party has
no title."
28. Plaintiff has failed to prove his lawful possession
over the suit schedule properties and the evidence on
record does not establish the possession of the plaintiff
over the suit schedule properties. The plaintiff has sought
declaration and therefore it is for him to establish his title
over the suit schedule properties. The stray admission
given by P.W.1 in his cross-examination does not establish
the fact possession of the suit schedule properties by the
plaintiff. The first appellate Court appreciated the
documentary and oral evidence on record and rightly come
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to the conclusion that the plaintiff has failed to establish
his title over the suit schedule properties. Accordingly
substantive question of law is answered in affirmative and
appeal is dismissed.
Sd/-
JUDGE
GH/LRS
