Karnataka High Court
Sri Honnagiri Gowda Since Dead By ... vs Sri K Gopal Rao S/O Late ... on 23 May, 2023
Bench: Ravi V Hosmani
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF MAY, 2023
BEFORE
THE HON'BLE MR. JUSTICE RAVI V. HOSMANI
REGULAR SECOND APPEAL NO.1567 OF 2007 (DEC/INJ)
BETWEEN:
SRI. HONNAGIRI GOWDA,
SINCE DEAD BY HIS LRs.,
1(a) SMT. MARILINGAMMA,
W/O LATE HONNAGIRI GOWDA,
AGED ABOUT 70 YEARS,
1(b) SRI. RAJU,
S/O LATE HONNAGIRI GOWDA,
AGED ABOUT 46 YEARS,
1(c) SRI. SHANKAR,
S/O LATE HONNAGIRI GOWDA,
AGED ABOUT 42 YEARS,
1(d) SRI. RAMU,
S/O LATE HONNAGIRI GOWDA,
AGED ABOUT 36 YEARS,
1(e) SMT. CHIKKATHAYAMMA,
D/O LATE HONNAGIRI GOWDA,
AGED ABOUT 48 YEARS,
1(f) SMT. BHAGYAMMA,
D/O LATE HONNAGIRI GOWDA,
AGED ABOUT 30 YEARS,
APPELLANTS 1(a) TO 1(f) ARE
R/AT DYAPASANDRA VILLAGE,
BASARAL HOBLI, MANDYA TALUK.
...APPELLANTS
[BY SRI K.S.NAGARAJA RAO, ADVOCATE (PH) ]
2
AND:
1. SRI. K.GOPAL RAO,
S/O LATE LAKSHMINARASIMHAIAH,
SINCE DEAD BY HIS LRs.
1(a) SMT. PADMA,
W/O LATE K.GOPAL RAO,
MAJOR,
1(b) SRI. K.G.SURESH,
S/O LATE K.GOPAL RAO,
MAJOR,
1(c) SRI. K.G.ANANTHA,
S/O LATE K.GOPAL RAO,
MAJOR,
1(d) SRI. K.G.SUDHEENDRA,
S/O LATE K.GOPAL RAO,
MAJOR,
1(e) SMT. K.G.RAMAMANI,
W/O NAGAHANUMANTHA RAO,
MAJOR,
1(f) SMT. K.G.GEETHA,
W/O VENKATAPPA,
MAJOR.
RESPONDENTS 1(a) TO 1(f) ARE
R/AT KERAGODU VILLAGE,
MANDYA TALUK - 571 401.
2. SRI. K.G.SURESH,
S/O LATE K.GOPAL RAO,
MAJOR,
R/AT KERAGODU VILLAGE,
MANDYA TALUK - 571 401.
3. SIDDALINGAIAH,
S/O DOLLEGOWDA, MAJOR,
DYAPASANDRA VILLAGE,
3
BASARAL HOBLI,
MANDYA TALUK - 571 401.
...RESPONDENTS
[BY SRI. RAVISHANKAR SHASTRY G., ADVOCATE FOR
SRI. K.A. CHANDRASHEKAR, ADVOCATE FOR R3 (PH);
NOTICE TO R1(a) & R1(c) ARE SERVED & UNREPRESENTED
V/O DATED 15.11.2012, NOTICE TO R1 (b, d, e & f) AND R2
ARE HELD SUFFICIENT]
THIS REGULAR SECOND APPEAL FILED UNDER SECTION 100 R/W
ORDER 41 RULE 1 OF CPC., AGAINST THE JUDGMENT & DECREE DATED
01.03.2007 PASSED IN R.A.NO.22/2001 ON THE FILE OF THE PRL.
DISTRICT JUDGE, MANDYA, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGEMENT AND DECREE DATED 05.09.2001 PASSED IN
O.S.NO.14/1991 ON THE FILE OF THE ADDL. CIVIL JUDGE (SR. DN.) &
CJM., MANDYA.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 05.04.2023, THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
JUDGMENT
Challenging judgment and decree dated 01.03.2007 passed
by Principal District Judge, Mandya, in R.A.no.22/2001 and
judgment and decree dated 05.09.2001 passed by Addl. Civil Judge
(Sr.Dn.) and CJM, Mandya in O.S.no.14/1991, this appeal is filed.
2. While appellants no.1(a) to 1(f) herein are legal heirs
of plaintiff - Honnagiri Gowda; respondents no.1(a) to 1(f) herein
are legal heirs of defendant no.1. Respondents no.2 and 3 herein
were defendants no.2 and 3 in original suit. They are hereinafter
referred to as such in this appeal.
3. O.S.no.14/1991 was filed seeking for declaration that
plaintiff was owner of suit properties and for permanent injunction
against defendants interfering with possession etc.
4. In plaint, it was stated that defendant no.1 was owner
of land bearing old Sy.no.90 of Keragodu village, Mandya District. It
was phoded and assigned new Sy.nos.891 and 952. At that time,
extent of 0.07 guntas of kharab land was allocated to Sy.no.891.
5. It was further stated that including said kharab land,
defendant no.1 sold 01 acre 10 guntas to plaintiff and retained 10
guntas. Thus, plaintiff was owner in possession of land measuring
02 acres 10 guntas. Lands bearing Sy.no.891, measuring 0.54
guntas and old Sy.no.90, new Sy.no.952, measuring 02 acres 20
guntas of Keragodu village, Mandya Taluk, were suit schedule
properties (for short 'suit properties').
6. It was stated that 10 guntas of land retained by
defendant no.1 was sold to one Shivamanchayya, who was in
possession thereof. On eastern side of land sold to plaintiff, there
was a Well and same was used by him. Plaintiff's vendor, however
had obtained loan from PLD Bank, Mandya, for digging said Well
and had undertaken to discharge loan. While executing sale deed,
defendant no.1 had specifically mentioned eastern boundary as
halla and western boundary as road. And though there was no
government land between halla and land sold to plaintiff, records
were subsequently built to show existence of government land. On
strength of grant of such imaginary land, new Sy.no.1011 was
assigned to an extent of 19 guntas. Thereafter, in partition between
defendant no.1 and his son - defendant no.2, said 19 guntas of land
was shown as allotted to defendant no.2, who sold it to defendant
no.3, about four years prior to suit.
7. It was asserted that since defendant no.1 was working
as Village Accountant, he had undue influence over revenue officials
and taking advantage of same, he might have obtained grant order
illegally. Though, plaintiff had applied for issuance of copy, revenue
authorities had issued an endorsement stating that records were
being traced. When he filed RTS appeal before Assistant
Commissioner, Mandya, it was dismissed for failure to produce
grant order. And though all defendants herein were parties to
appeal, they failed to disclose particulars or even date of grant.
Even complaints to Deputy Commissioner for direction to issue copy
of grant order proved futile despite issuance of direction.
8. It was stated that when defendant no.1 had admittedly
sold 02.2 acres upto halla on east and road on west, plaintiff
became owner of entire land even assuming in between there was
government land. It was further stated that plaintiff had spent huge
amount of money for developing said land and to bring it under
cultivation. Therefore, defendants no.2 and 3 did not have either
title or possession over suit properties and as they were claiming
title and attempting to disturb possession, plaintiff was entitled for
decree as sought for.
9. Upon service of suit summons, defendants entered
appearance and filed written statement denying plaint averments.
It was stated that age of defendants no.1 and 2 was 61 and 34
years, but incorrectly stated as 50 and 25 years respectively. It was
further stated that description of eastern boundary as halla was
alleged to be false. It was stated that defendant no.1 had sold 01
acre 03 guntas of hinu land in Sy.no.891 to plaintiff and retained 10
guntas of hinu land towards its south and that plaintiff was not at
all owner or in possession of 02 acres 10 guntas of land. While sale
of 10 guntas in favour of Sri.Shivamanchayya was admitted,
existence of Well within land purchased by plaintiff and he making
use of same was denied. It was stated that defendant no.1 had
discharged PLD Bank loan and plaintiff had nothing to do with it.
10. It was specifically stated in sale deed that eastern
boundary was land in possession of defendant no.1. Therefore,
denial of existence of land between halla and land sold to plaintiff
was baseless. It was stated that 19 guntas of land was granted to
defendant no.1 and same was in his possession, as it was properly
measured and boundaries were fixed by assigning new Sy.no.1011.
It was further stated that there was lawful partition between
himself and his son i.e., defendant no.2, wherein said 19 guntas
was allotted to share of defendant no.2 and thereafter, defendant
no.2 sold it to defendant no.3 for legal necessity. Allegations of
undue influence over revenue authorities was denied. Even claim of
improvements made by spending money were denied.
11. It was asserted that formally 03 acres of land i.e.,
extent of 01 acre 20 guntas each in two blocks out of Sy.no.90
were granted to defendant no.1 during year 1955-56 and after
payment of upset price, saguvali chit was issued. After due
measurement, durasthi was completed by assigning Sy.nos.891 and
892. After grant, new road was formed utilising 07 guntas and
excluding said extent, remaining 01 acre 13 guntas only was hinu
land.
12. It was further stated that similarly an extent of 01 acre
10 guntas including 15 guntas kharab (i.e. 10 guntas as halla-
kharab and 5 guntas - kallumanti) was granted to defendant no.1 in
Sy.no.90. After measurement same was assigned Sy.no.952.
Though under registered sale deed dated 16.08.1971 defendant
no.1 sold 01 acre 03 guntas of hinu land to plaintiff, boundaries of
land sold were properly described. Therefore, boundaries of land
purchased by plaintiff and land retained by defendant no.1 were
clear and conclusive and they were in possession of respective
extents.
13. Extent of subsequent land granted by Tahsildar,
Mandya in order bearing no.LND.GDR no.22/70-71 on 09.05.1972
was 22 guntas and saguvali chit was issued on 19.05.1973. After
measurement and phodi, it was assigned new Sy.no.1011. But, only
19 guntas was available, durasthi was completed by showing 19
guntas only. Subsequently in partition, said land was assigned to
defendant no.2, who sold it to defendant no.3 under registered sale
deed dated 16.07.1986 for his legal necessity. Pursuant to sale
deed, defendant no.3 was in possession of said extent. Therefore,
plaintiff had no right, title or interest over land in Sy.no.1011. By
wrongly mentioning eastern boundary as halla, plaintiff had laid
false claim over same, which was required to be rejected.
14. It was further stated that plaintiff had also got initiated
proceedings under Section 145 of Cr.P.C., against defendant no.3.
In said proceedings, land comprised in Sy.no.1011 was attached
and in possession of receiver. Plaintiff also challenged order of
grant before Assistant Commissioner, which was dismissed. Appeal
against said order was pending before Deputy Commissioner. Not
satisfied with same, plaintiff had filed suit to harass defendants and
sought for dismissal.
15. Based on pleadings, trial Court framed following:
Issues:
1. Whether the plaintiff proves that he is the owner of
the suit schedule properties?
2. Whether the plaintiff proves that he is in
possession of the suit schedule properties as on the
date of the suit?
3. Whether the plaintiff proves unlawful interference
with his possession of the suit schedule properties
by the defendants?
4. Whether the plaintiff is entitle to the relief of
permanent injunction against the defendants?
5. Whether the boundaries described in the suit
schedule properties are correct?
6. Whether the defendants prove that the plaintiff has
included the entire land comprised in s.no.1011 by
mentioning wrong boundary as halla?
7. To what relief?
16. Thereafter, plaintiff examined himself and three other
witnesses as PWs.1 to 4 and got marked Exhibits P1 to P9.
Defendant no.1 examined himself and three other witnesses as
DWs.1 to 4 and got marked Exhibits D1 to D20.
17. On consideration, trial Court answered issues no.1 to 5
in negative, issue no.6 in affirmative and issue no.7 by dismissing
suit.
18. Aggrieved thereby, plaintiff filed R.A.no.22/2001.
During its pendency, plaintiff died and his legal representatives
came on record. In appeal, it was contended that trial Court erred
in improper appreciation of facts and evidence; it erred in
understanding Ex.P1- sale deed which indicated that extent of 01
acre 10 guntas of land and another extent of 01 acre 10 guntas was
sold therein. It failed to note that defendant no.1 did not produce
any documents to show that he was granted land including road.
There was no proper consideration of facts that defendant no.1 was
not owner of 02 acres 10 guntas at time of executing sale deed.
Though he became owner of 02 acres 20 guntas of land
subsequently, having received consideration for 02 acres 20 guntas,
was under obligation to make available said extent and only if
anything remained in excess, could sell it to defendant no.3. It
erred in discarding deposition of PWs.2 and 3, who are adjacent
land owners. Trial Court erred in holding that 07 guntas of land was
taken for formation of road which was erroneous, as defendant no.1
did not establish for having received compensation for same. It also
erred in holding that only 01.3 acres was sold instead of 01 acre 10
guntas. It's observation that defendant no.1 had delivered 21/2
acres of land to plaintiff was palpably erroneous and could be
confirmed by appointing Court Commissioner. It erred in relying
upon Ex.D1-village map and deposition of DWs.1 to 4 etc.
19. Based on contentions urged, first appellate Court
framed following points for consideration:
1. Whether the plaintiff has proved the
correctness of the area and boundaries
furnished in the plaint schedule?
2. Whether the plaintiff has proved that he has
purchased the property from 1st defendant
up to halla on the eastern side?
3. Whether the plaintiff is entitled to relief of
declaration and injunction as prayed for?
4. Whether the impugned judgment and decree
call for interference in this appeal?
20. Thereafter, it dismissed appeal by answering points
no.1 to 4 in negative. Aggrieved thereby, this second appeal is
preferred.
21. Sri K.S.Nagaraja Rao, learned counsel for plaintiff
submitted that this was plaintiff's second appeal against concurrent
rejection of relief of declaration of his title and permanent
injunction. It was submitted that appeal was admitted on
18.01.2013 to consider following substantial question of law:
"Whether Courts below were justified in
disbelieving the case of the plaintiff after giving a
finding in favour of the plaintiff"
22. It was submitted that original plaintiff and defendant
no.1 died during pendency of first appeal and their legal
representatives were brought on record. It was submitted that
while passing impugned judgment and decree, trial Court had
observed that defendant no.1 admitted to have put plaintiff in
possession of properties sold under registered sale deed. In
paragraph no.16, trial Court observed that under Ex.P1- registered
sale deed, defendant no.1 had sold 01 acre 3 guntas including 7
guntas of kharab and retained 10 guntas and 01 acre 10 guntas in
Sy.no.90 consisting of 15 guntas kharab and 35 guntas of hinu
land, by giving common boundaries. In paragraph no.18, it
observes that Ex.P6 - mahazar was produced by plaintiff to prove
his possession over suit properties till halla. Likewise in paragraph
no.26, that Exs.P2 to P5 - RTC and pahani extracts prove that
plaintiff was in possession and enjoyment of properties purchased
under Ex.P1. However, contrary to above observations, it answered
issues no.1 to 3 in negative and thereby committed error.
23. And though plaintiff produced documentary evidence
i.e. Ex.P1- registered sale deed, Exs.P2 to P5 - RTCs, Ex.P6-
mahazar and Ex.P7 - sketch of lands, trial Court erroneously
disbelieved same. It was contended that since dismissal of appeal
against order of grant to defendant no.1 was due to failure to
produce grant order, as defendant no.1 - custodian thereof also
failed to produce it, adverse inference ought to have been drawn
against him. Hence, as trial Court and first appellate Court had
failed to consider above mentioned evidence, impugned judgment
and decree were liable to be set aside and suit decreed by
answering substantial question of law in favour of plaintiff.
24. On other hand, legal representatives of defendant no.1
and defendant no.2 are served, unrepresented. However,
Sri Ravishankar Shastry G., learned counsel appearing for
Sri K.A.Chandrashekar, advocate for defendant no.3, opposed
appeal.
25. It was submitted that description of suit properties in
plaint schedule was not as per Ex.P1 - sale deed, wherein it was
clearly stated that to east of demised property, location of halla and
also some other land which defendant no.1 had sought for grant in
lieu of land lost by him. Since plaintiff had sought declaration of
title based on incorrect description of suit properties, judgment and
decree passed by both Courts appreciating this aspect would be
justified.
26. It was contended that appeal filed by plaintiff against
darkhast grant made to defendant no.1 was dismissed by Assistant
Commissioner, under order - Ex.D17, thereby affirming Ex.D12-
saguvali chit. Even appeal filed before Deputy Commissioner was
dismissed under Ex.D19-order. It was submitted that in paragraphs
no.16 and 18, trial Court categorically observed that plaintiff led
evidence only to prove that he had purchased property upto land
belonging to defendant no.1 and halla as claimed. Said finding was
on appreciation of oral and documentary evidence and confirmed by
first appellate Court. It was submitted that PW.4 - surveyor had
admitted that halla was abutting land of defendant no.1 on its
eastern side.
27. It was submitted that first appellate Court upon re-
appreciation of entire evidence and taking note of Commissioner's
report and deposition, to come to conclusion about existence of
Sy.no.1011 in between halla and plaintiff's land, which was also
finding of fact. Since there was re-appreciation of entire material by
first appellate Court, judgment and decree passed by it was
justified. In view of above, said findings were concurrent findings of
fact and could not be interfered with in second appeal.
28. Heard learned counsel, perused judgment and decree
and records.
29. From above submissions, there is no dispute about
defendant no.1 being owner of suit properties prior to execution of
Ex.P1-sale deed. While plaintiff claims that there was alienation of
extent of 01 acre 10 guntas of land each in Sy.no.891 and
Sy.no.952 i.e. total extent demised was 02 Acres 20 guntas, and
therefore common boundary description included entire extent
between road and halla, it is specific case of defendant no.1 that
there was survey/measurement conducted at time of phodi. On
finding land in between halla and land sold to plaintiff, it was
granted to defendant no.1, after measurement, it was assigned
Sy.no.1011 and in view of dismissal of plaintiff's appeal against
grant, there was no subsisting cause of action to file suit.
30. While passing impugned judgment and decree, trial
Court took note of deposition of plaintiff as PW.1, neighbouring land
owners as PWs.2 and 3 and surveyor as PW.4. It also referred to
documentary evidence namely Ex.P1 - sale deed, Exs.P2 to P5 -
RTCs, Ex.P6 - mahazar, Ex.P7 - sketch, Exs.P8 and P9 - tippani.
31. In fact, in paragraph - 16, trial Court took note of fact
that plaintiff had given common boundaries to schedule properties
showing eastern boundary as halla. It observed that description of
eastern boundary in Ex.P1 - sale deed was 'land granted to him and
halla'. Hence, its finding on issues no.1 to 3 was on ground that
description of schedule property of plaintiff was incorrect. Said
conclusion is after due appreciation of evidence.
32. Further in light of it's finding on boundary description in
Ex.P1, conclusion in paragraph - 18, that plaintiff's claim as
unsubstantiated, based on Exs.P.2 to 5 RTCs and pahanies, which
do not disclose boundaries, would be justified.
33. Even contention based on observation in paragraph -
26 that Exs.P2 to 5 prove plaintiff is in possession and enjoyment of
property purchased under Ex.P.1 would be uncharitable, as trial
Court has categorically stated that said documents did not contain
boundary description. Further, insofar as other evidence led by
plaintiff, it observed that deposition of PWs.2 and 3 would not be
helpful or believable, as they failed to establish that they were
neighbouring landowners by producing any documentary evidence.
It observed that failure of PW.2 to say extent of land in possession
of plaintiff would establish that he was deposing on basis of hearsay
of plaintiff.
34. Insofar as PW.3, it observes that said witness stated
that his children were cultivating land towards east of suit property
situated on edge of halla. It observed that apart from his failure to
establish said claim by documentary evidence, said assertion would
be contrary to recitals in Ex.P.1. It also noted that in cross-
examination, he admitted not to have seen Ex.P.1 - sale deed.
35. Apart from above, trial Court also dealt with deposition
of PW.4 - surveyor, who surveyed suit property. It took note of his
admission about 07 guntas of land being taken for formation of
road and that including said portion, extent of sy.no.891 was 01
acre 20 guntas. According to it, when plaintiff admitted that
defendant no.1 had retained 10 guntas; while in Ex.P.1, extent
purchased by plaintiff would be only 01 acre and 03 guntas. Even in
respect of Sy.no.952, PW.4 stated that 15 guntas was kharab and
35 guntas was hinu land. Taking note of his admission about
existence of Sy.no.1011 towards eastern side of Sy.no.952 and
halla towards eastern side of Sy.no.1011, as admission of
defendant's contention. Reliance on Ex.P.6 - mahazar has been
discounted on ground that contents were not proved by examining
any mahazar witnesses. It observed that Exs.P.8 and 9 disclosed
existence of 19 guntas of land in Sy.no.1011 on eastern side of
Sy.no.952. Based on said consideration, trial Court answered issues
against plaintiff.
36. While passing impugned judgment and decree, first
appellate Court has re-appreciated entire material in light of
evidence of Surveyor appointed as Court Commissioner. After in
depth analysis of boundary description in Ex.P.1, Ex.D.1, D.10 and
also Court Commissioner's report, it concluded that boundary
description of suit property by plaintiff was incorrect and that
defendant no.1 had established existence of 16 guntas of land
granted to him in between halla and land sold to plaintiff. It also
concludes from cross-examination of CW.1 that said extent belongs
to and was in possession of defendant no.1. On re-appreciation, it
has affirmed findings of trial Court.
37. From above, it is clear that only basis for plaintiff's
claim is Ex.P.1 - sale deed. Admittedly, dispute is with regard to
existence or non-existence of any other land than demised property
under Ex.P.1- sale deed. Sale of land by defendant no.1 to plaintiff
under Ex.P.1 is admitted. Eastern boundary described in Ex.P.1 is
as follows:
"µÉqÀÆå¯ï: - EzÉà ªÀÄAqÀå vÁ®ÆèPï, PÉgÀUÉÆÃqÀÄ ºÉÆç½,
CgÀUÉÆÃqÀÄ UÁæªÀÄzÀ°ègÀĪÀÅzÀPÉÌ
¥ÀÆgÀéPÉÌ : £À£ÀUÉ jPÁqÀÄð DVgÀĪÀ d«ÄãÀÄ,
ºÉÆÃVgÀĪÀÅzÀPÉÌ d«ÄãÀÄ ºÉÆÃVgÀĪÀÅzÀPÉÌ
d«ÄãÀÄ PÉýgÀĪÀ ºÀ¢£ÁgÀÄ UÀÄAmÉ d«ÄãÀÄ
ªÀÄvÀÄÛ ºÀ¼Àî.
¥À²ÑªÀÄPÉÌ: gÀ¸ÉÛ,
GvÀÛgÀPÉÌ : aPÀ̧½î UÀr,
zÀQëtPÉÌ : zÉÆqÀتÀÄÄ£ÉÃUËqÀgÀ d«ÄãÀÄ ªÀÄvÀÄÛ £Á£ÀÄ ¥À²ÑªÀÄ
¨sÁUÀzÀ PÀqÉ zÉÆqÀدÁUÉÆÃr£À ªÀwÛ£À°è
G½¹PÉÆArgÀĪÀ ºÀvÀÄÛ UÀÄAmÉ D«ÄãÀÄ."
But, in plaint schedule, it is mentioned only as halla. In a suit
for declaration of title, incorrect description of suit schedule
property would be fatal. And since finding about incorrect boundary
description of suit property by plaintiff is concurrent and after due
appreciation of entire material available by trial Court and first
appellate Court, plaintiff fails to establish perversity of findings of
both Courts. Therefore, substantial question of law has to be
answered in affirmative. Consequently, following:
ORDER
Appeal is dismissed with costs.
Impugned judgment and decree dated 01.03.2007 passed by
Principal District Judge, Mandya, in R.A.no.22/2001 and judgment
and decree dated 05.09.2001 passed by Addl. Civil Judge (Sr.Dn.)
and CJM, Mandya in O.S.no.14/1991 is confirmed.
Sd/-
JUDGE
GRD
