Karnataka High Court
C S Venkataramu vs Krishnegowda on 31 March, 2023
Bench: H.P.Sandesh
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RSA No. 1139 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 1139 OF 2019 (DEC/INJ)
BETWEEN:
1. C.S. VENKATARAMU
S/O LATE SUBBARAYAPPA
AGED ABOUT 57 YEARS
2. C.S. SRINIVASAMURTHY
S/O LATE SUBBRAYAPPA
AGED ABOUT 51 YEARS
3. C.S. SATYANARAYANA
S/O LATE SUBBRAYAPPA
AGED ABOUT 46 YEARS
ALL ARE AGRICULTURISTS
R/AT BRAHAMANARA STREET
CHHILKUNDA VILLAGE
Digitally signed
by SHARANYA T HANAGODU HOBLI, HUNSUR TALUK
Location: HIGH MYSORE DISTRICT-571 105.
COURT OF ...APPELLANTS
KARNATAKA
(BY SRI. RAMU V., ADVOCATE FOR
SRI SUNIL S. NARAYAN, ADVOCATE)
AND:
1. KRISHNEGOWDA
S/O BOREGOWDA
AGED ABOUT 55 YEARS
TAMABKU MANDALI WORKER
2. RATHNAMMA
W/O KRISHNEGOWDA
AGED ABOUT 47 YEARS
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RSA No. 1139 of 2019
3. THIMMAIHNAYKA
SINCE DEAD BY LRS
3(a) GOWRAMMA
W/O LATE THAMMAIAHNAIKA
AGED ABOUT 35 YEARS
3(b) SHASHI
S/O LATE THAMMAIAHNAIKA
AGED ABOUT 35 YEARS
3(c) PRAKASH
S/O LATE THAMMAIAHNAIKA
AGED ABOUT 33 YEARS
3(d) KRISHNA @ KITTI
S/O LATE THAMMAIAHNAIKA
AGED ABOUT 30 YEARS
3(e) SHANTHI
D/O LATE THAMMAIAHNAIKA
AGED ABOUT 29 YEARS
ALL ARE AGRICULTURISTS
3(a) to (e) R/AT CHILKUNDA VILLAGE
HANAGODU HOBLI
HUNSUR TALUK-571 105.
4. CHANDRANAYAKA
S/O LATE MANCHANAIKA
AGD ABOUT 47 YEARS
5. NAGAMA
D/O LATE SANNANAYAKA
AGED ABOUT 53 YEARS
6. SIDDANAYAKA
SON-IN-LAW OF SANNAYAK
SINCE DEAD BY LRS
6(a) MANJU
S/O LATE SIDDANAYAKA
AGED ABOUT 22 YEARS
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RSA No. 1139 of 2019
6(b). NAGENDRA
S/O LATE SIDDANAYAKA
AGED ABOUT 20 YEARS
6(a) TO 6(b) ALL ARE
R/AT CHILKUNDA VILLAGE
HANAGODU HOBLI
HUNSUR TALUK-571 105.
6(c) MAHADEVI
D/O LATE SIDDANAYAKA
HOSUR VILLAGE
CHUNCHANAKATTE HOBLI
KR NAGAR TALUK-571617.
6(d) BHAGYA
D/O LATE SIDDANAYAKA
CHANNAKALLU VILLAGE
DODDAKAMARAVALLI POST
'B' BLOCK, PERIYAPATNA TALUK-571187.
6(e) PREMA
D/O LATE SIDDANAYAKA
CHANNAKALLU VILLAGE
PERIYAPATNA TALUK-571 107.
6(f) SUSHEELA
D/O LATE SIDDANAYAKA
CHILKUNDA VILLAGE
HANAGODU HOBLI
HUNSUR TALUK-571 105.
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 24.01.2018
PASSED IN RA.NO.423/2014 ON THE FILE OF THE VIII ADDL.
DISTRICT AND SESSIONS JUDGE, MYSURU SITTING AT
HUNSUR, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 24.02.2014 PASSED IN
O.S.NO.27/2006 ON THE FILE OF THE SENIOR CIVIL JUDGE,
HUNSUR.
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RSA No. 1139 of 2019
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission. Heard the learned
counsel appearing for the appellants.
2. This appeal is filed challenging the judgment and
decree dated 24.01.2018 passed in R.A.No.423/2014 on the file
of the VIII Additional District and Sessions Judge, Mysuru
sitting at Hunsur.
3. The factual matrix of the case of the plaintiffs
before the Trial Court is that the suit schedule property belongs
to them and also they are in possession of 'C' schedule
property and the defendants are interfering with the possession
of the said properties. Hence, sought for the relief of
declaration, possession in respect of 'B' schedule property on
the ground that permissive possession was given to the
defendants. The defendants have filed the written statement
contending that they have constructed the house and the
plaintiffs are not in possession of the suit schedule properties at
any point of time 12 years next prior to the date of suit and the
plaintiffs are not entitled for the relief of declaration,
RSA No. 1139 of 2019
possession, permanent injunction and mandatory injunction.
Based on the pleadings of the parties, the Trial Court framed
the issues and allowed the parties to lead their evidence. In
order to prove the case of the plaintiffs, plaintiff No.3 examined
himself as PW1 and also examined one witness as PW2 and got
marked the documents at Ex.P1 to P23. On the other hand,
defendant No.2 examined herself as DW1 and also examined
three witnesses as DW2 to DW4 and got marked the
documents at Ex.D1 to D9. The Court Commissioner also
examined as CW1 and got marked the documents at Ex.C1 to
C14. The Trial Court after considering both oral and
documentary evidence placed on record answered Issue Nos.1
and 2 as negative in coming to the conclusion that the plaintiffs
are not the absolute owners of the suit 'B' schedule property
and they are not in possession of 'C' schedule property and also
answered Issue Nos.5 and 6 as negative against the defendants
and the plaintiffs are also not entitled for any relief as they
have not proved the possession as well as the ownership over
the suit schedule properties.
4. Being aggrieved by the judgment and decree of the
Trial Court, an appeal was preferred before the First Appellate
RSA No. 1139 of 2019
Court. The First Appellate Court on considering the grounds
urged in the appeal memo and also hearing the respective
counsel formulated the points that whether the plaintiffs have
been able to effectively demonstrate that he is the owner in
possession of suit 'B' schedule property and whether the
plaintiffs have established that they have permitted the
defendants to be in permissive possession of the farm house
situated in 'B' schedule property and the defendants have
demolished a portion of 'B' schedule property which is
described as 'C' schedule property without the consent of the
plaintiffs and whether the Trial Court had appreciated the both
oral and documentary evidence placed on record by the parties
to the suit in a proper perspective and whether the judgment
and decree of the Trial Court is erroneous, capricious and calls
for interference. The First Appellate Court also on re-
appreciation of both oral and documentary evidence placed on
record answered Point Nos.1, 2 and 4 as negative in coming to
the conclusion that the Trial Court has considered the material
available on record in a proper perspective and not committed
any error in confirming the judgment and decree of the Trial
Court. Hence, the present appeal is filed before this Court.
RSA No. 1139 of 2019
5. The learned counsel for the appellants vehemently
contend that both the Courts have committed an error in not
considering both oral and documentary evidence placed on
record in a proper perspective even though production of
cogent and convincing evidence to prove their title and lawful
possession over the suit schedule properties and the Trial Court
ought to have considered the materials placed before the Court
at Ex.P1 to P23 but failed to appreciate the same and the First
Appellate Court also committed an error in confirming the
judgment and decree of the Trial Court. The counsel
vehemently contend that this Court has to frame the
substantial question of law since both the Courts have
committed an error in dismissing the suit of the plaintiffs and
passed an illegal order without appreciating the material
available on record in a proper perspective.
6. Having heard the learned counsel for the appellants
and also on perusal of the material available on record, it
discloses that the plaintiffs have sought for the relief of
declaration that they are the absolute owners of 'B' schedule
property and to restrain defendant Nos.1 to 6 from putting up
foundation in the 'C' schedule property by granting permanent
RSA No. 1139 of 2019
injunction and if the Court comes to the conclusion that the
defendants have put up the construction in the 'C' schedule
property during the pendency of the suit, then to issue
mandatory injunction for demolition of the same and to direct
the defendants to handover the vacant possession of 'B'
schedule property. The 'B' schedule property is a portion of 'A'
schedule property and 'C' schedule property is a portion of 'B'
schedule property. The Sy.No.1/1A measuring to the extent of
3 acres 15 guntas and other properties bearing Sy.No.1/1B
measuring 1½ guntas, Sy.No.1/4 measuring 4 guntas and
Sy.No.1/5 measuring 5 guntas totally measuring 3 acres 24½
guntas and the same is described in the schedule as 'A'
schedule properties. It is contended that 'B' schedule property
is a portion of 'A' schedule property and the same is mentioned
in the schedule and description is given wherein a farmhouse
was constructed by the father of the plaintiffs and the same
was given as permissive possession. The extent of 'B' schedule
property measuring east to west 88 feet and north to south 124
feet. The 'C' schedule property is a portion of 'B' schedule
property which measures east to west 22 feet and north to
south 25 feet.
RSA No. 1139 of 2019
7. The Trial Court after considering both oral and
documentary evidence placed on record comes to the
conclusion that the plaintiffs have not produced any documents
in respect of Sy.No.1/1A, 1/1B, 1/4 and 1/5. Sy.No.1/4 is in
possession of children of Siddanayaka. The both oral and
documentary evidence placed on record discloses that
Venkatagiriyappa was the owner of 10 acres 8 guntas of land
but there is no document to show that said Subbarayappa got 5
acres 8 guntas. The plaintiffs claims to be the owner in
possession of Sy.No.1/1B measuring 1½ guntas, Sy.No.1/4
measuring 4 guntas and Sy.No.1/5 measuring 5 guntas in total
3 acres 24½ guntas. In order to substantiate that the plaintiffs
are the owners of the suit schedule properties, no documents
are placed including encumbrance certificate and also in respect
of the contention that they have constructed the farm house,
no material is placed. The other contention of the plaintiffs that
they have given permissive possession to the defendants. In
order to prove the said fact also no material is placed before
the Court. Hence, the plaintiffs have failed to produce any
material with regard to the existence of 'B' schedule property
and 'C' schedule property is a portion of 'B' schedule property.
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RSA No. 1139 of 2019
The plaintiffs have failed to prove the possession of 'C' schedule
property also. But the material discloses that defendant No.2
has constructed the house in Sy.No.1/4. Having considering all
these materials, the Trial Court dismissed the suit of the
plaintiffs.
8. The First Appellate Court also on re-appreciation of
both oral and documentary evidence placed on record in
paragraph 28 and 29 discussed with regard to the claim of the
plaintiffs. In paragraph 29, discussed with regard to the
admission given by PW1 in his cross-examination wherein he
pleads ignorance with regard to his father that he had
constructed the house but taken note of the admission that
there is no document to show that permissive possession was
given. The First Appellate Court also taken note of the
admission that Sy.No.1/1A, 1/2A, 1/3A and B, 1/4 and 1/1B
stands in the name of different persons. He also admits that
Chandranayaka had sold to Rathnamma and that Rathnamma
has put up RCC construction. He admits that since the date of
construction, Rathnamma was in possession of the property. He
admits that farm house and thotadamane is one and the same
and also he admits that his father had not given permissive
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RSA No. 1139 of 2019
possession to Manchanayaka to reside in the farm house. He
pleads ignorance with regard that since when, the
Manchanayaka was residing in the farmhouse. In paragraph
30, the First Appellate Court comes to the conclusion that the
revenue records and survey records clearly demonstrate that
Sy.No.1/1A, 1/2A, 1/3A and B, 1/4 and 1/1B stands in the
name of different persons. It is not the case of the plaintiffs
that pakka phoding was not done in accordance with law.
Having considered all these materials the First Appellate Court
dismissed the appeal.
9. The very contention of the learned counsel for the
appellants that defendant Nos.3 and 4 also admit that they are
also not having any documents in respect of the suit schedule
properties and the said submission cannot be accepted for the
reason that when the plaintiffs have filed the suit for the relief
of declaration, they have to prove their title instead of
depending upon the weakness of the defendants. Same is also
observed by both the Courts that when the suit is filed for the
relief of declaration, possession, permanent injunction and
mandatory injunction, firstly, the plaintiffs have to prove their
title and also observed that in order to prove the factum of
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RSA No. 1139 of 2019
permission possession, nothing is established before the Court
and no document is placed before the Court. When both the
Courts have given an anxious consideration to the material
available on record in coming to the conclusion that the
plaintiffs have not proved their case and documents are also
stand in the name of different persons in respect of suit
schedule properties. Hence, I do not find any perversity in the
findings of both the Courts to invoke Section 100 of CPC to
frame the substantial question of law as there is no merit in the
appeal.
10. In view of the discussions made above, I pass the
following:
ORDER
The appeal is dismissed.
In view of dismissal of the main appeal, I.A.
if any, does not survive for consideration and the
same stands disposed of.
Sd/-
JUDGE
SN
