Karnataka High Court
Smt Chandbi @ Chandamma W/O Rehamansab vs Basappa S/O Narasappa Machagaranr on 28 November, 2023
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RSA No. 7182 of 2011
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 28TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
REGULAR SECOND APPEAL NO.7182 OF 2011 (INJ)
BETWEEN:
SMT. CHANDBI @ CHANDAMMA
W/O REHAMANSAB,
AGED ABOUT 65 YEARS,
OCC: AGRICULTURE,
R/O: HUNUR VILLAGE,
TQ: DEVADURGA
DIST: RAICHUR.
...APPELLANT
(BY SRI: MAHANTESH PATIL, ADVOCATE)
AND:
1. BASAPPA
S/O NARASAPPA MACHAGAR,
Digitally signed
by SWETA AGED ABOUT 68 YEARS,
KULKARNI OCC: AGRICULTURE & RETIRED
Location: HIGH
COURT OF GOVT. SERVANT,
KARNATAKA R/O DEVADURGA
NOW RESIDING AT
SAPPE BAZAAR,
MACHHI MARKET,
RAICHUR - 584 101.
2. MAHADEVAPPA,
S/O NARASAPPA MACHAGAR,
AGED ABOUT 65 YEARS,
OCC: RETIRED KSRTC EMPLOYEE,
R/O: DEVADURGA ,
NOW RESIDING AT RAICHUR.
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RSA No. 7182 of 2011
NEAR SBI, MARWADI STREET,
RAICHUR - 584 101.
...RESPONDENTS
(BY SRI: R.S. SIDDAPURKER, ADVOCATE FOR R1 & R2)
THIS RSA IS FILED U/S. 100 OF CPC, AGAINST THE
JUDGMENT AND DECREE DTD:30.03.2011 PASSED IN R.A.
NO.09/2008 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE
AND J.M.F.C. - I AT RAICHUR, ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGMENT AND DECREE DATED
4.02.2008 IN O.S. NO.26/2007 ON THE FILE OF THE CIVIL
JUDGE (JR. DN.) AT DEVADURGA.
THIS RSA, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The plaintiff in O.S.No.26/2007 on the file of the learned
Civil Judge, (Jr.Dn.), Devadurga, (hereinafter referred to as
'the trial Court' for brevity), is impugning the judgment and
decree dated 30.03.2011 passed in R.A.No.9/2008 on the file of
the learned Additional Senior Civil Judge and JMFC, Raichur
(hereinafter referred to as 'the First Appellate Court' for
brevity), allowing the appeal with cost and setting aside the
judgment and decree passed by the Trial Court vide order
dated 04.02.2008 granting permanent injunction in favour of
the plaintiff.
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2. For the sake of convenience, the parties are
referred to as per their rank and status before the Trial Court.
3. Brief facts of the case are that, the plaintiff filed the
suit O.S.No.26/2007 before the Trial Court against defendant
Nos.1 and 2 seeking the relief of permanent injunction
restraining the defendants from interfering with her peaceful
possession and enjoyment of the land bearing Sy.N.554/1,
measuring 14.26 acres, situated at Hunoor Village with the
boundaries mentioned therein (hereinafter referred to as 'the
'Suit Property' for brevity).
4. It is contended by the plaintiff that the defendants
are the sons of deceased Narasappa who died long back. The
said Narasappa was the absolute owner of the suit property.
He agreed to sell the same in favour of the plaintiff by
executing the agreement for sale dated 30.06.1976. The
possession of the property was also handed over to the
plaintiff. Since then, she is in possession and enjoyment of the
suit property. The record of rights stand in her name. She is
paying the land revenue and cultivating the land. It is stated
that defendant No.1 and 2 with dishonest intention, tried to
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interfere with the peaceful possession and enjoyment of the
suit property. Therefore, she filed the suit to protect her
possession over the same. Accordingly, prays for allowing the
suit.
5. Defendant Nos.1 and 2 have filed the written
statement denying the contentions taken by the plaintiff. It is
contended that the suit property is the ancestral property of the
defendants. The revenue records stood in the name of
Hussainmma, W/o. Narasappa. The plaintiff in collusion with
the revenue officials, managed to get her name entered in the
revenue records as per ME No.5/2005-06 dated 07.01.2006.
As per this entry, Hussainmma- mother of the defendants said
to have executed the Will in the year 1995, but Hussainmma
died in the year 1992 and she never bequeathed the suit
property in favour of the plaintiff. The contention now raised by
the plaintiff that Narasappa- father of the defendants executed
the agreement for sale and handed over the possession of the
property in her favour is quite contrary. It is contended that
the plaintiff was not in possession of the suit property at any
point of time. The defendants are in possession of the property
by inheritance and prayed for dismissal of the suit.
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6. On the basis of these pleadings, the following issues
and additional issues came to be framed;
ISSUES:
1) "Whether the plaintiff proves that, she has been
in possession and enjoyment of suit land in
pursuance of agreement of sale dated:
30.06.1976?
2) Whether the plaintiff further proves that she has
perfected her title over suit land by adverse
possession?
3) Whether the defendants proves that, the plaintiff
has got entered her name in respect of suit land
by creating false will deed and no documents has
executed by their parents in favour of plaintiff?
4) Whether the plaintiff is entitle for reliefs as
sought?
5) What order or decree?
ADDITIONAL ISSUE:
"Whether the plaintiff further proves interference by
defendants as alleged in the plaint?"
7. The plaintiff examined herself as PW-1, examined
PWs.2 and 3 and got marked Exs.P1 to 17 in support of her
contention. Defendant No.1 examined himself as DW-1,
examined DW-2 and got marked Exs.D1 to 9 in support of his
defence. The Trial Court after taking into consideration all
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these materials on record, answered issue Nos.1 to 4 and the
additional issue in the affirmative and accordingly, decreed the
suit of the plaintiff as prayed for.
8. Being aggrieved by the same, the defendants have
preferred R.A.No.9/2008 before the First Appellate Court. The
First Appellate Court on re-appreciation of the materials on
record, allowed the appeal and set aside the impugned
judgment and decree passed by the Trial Court. Consequently,
the suit of the plaintiff was dismissed.
9. Being aggrieved by the same, the plaintiff is before
this Court.
10. Heard Sri Mahantesh Patil, learned counsel for the
appellant/plaintiff and Sri R.S.Siddapurker, learned counsel for
the respondents/defendants.
11. Learned counsel for the appellant/plaintiff
contended that the plaintiff is basing her title over Ex.P16
which is a letter in the form of an agreement for sale, wherein,
consideration was paid and possession of the property was
already handed over to the plaintiff by Narasappa, who is the
father of defendant Nos.1 and 2. Exs.P3 to 15 are the revenue
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receipts where the plaintiff had paid the tax for the land in
question. Even though as per the revenue records - Exs.P1, P2
and P17 MR No.7/2005-06 was certified on the basis of the so
called Will executed by Hussainmma, W/o. Narasappa. Even
though it is contrary to the contention of the plaintiff, she has
proved her possession over the suit property by placing
sufficient materials. The revenue receipts as per Exs.P3 to 15
and the evidence of PWs.1 to 3 prove her contention regarding
possession of the property. Even though the defendants
examined DW-2 as an independent witness, he categorically
submitted that he was working under defendant No.1 and
therefore, he is deposing before the Court even though he has
no idea about the suit property. The Trial Court was right in
decreeing the suit of the plaintiff. But, the First Appellate Court
committed an error in dismissing the suit of the plaintiff.
Hence, he prays for allowing the appeal.
12. Per contra, learned counsel for the
respondents/defendants opposing the appeal submitted that
the contention of the plaintiff that Narasappa executed the
agreement for sale in respect of the suit property is not at all
proved. Ex.P16 cannot be looked into as an agreement for
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sale, under which, possession of the property said to have been
handed over to the plaintiff. The documents relied on by the
plaintiff i.e., Exs.P1, 2 and 17, refer to MR No.7/2005-06.
According to which, Hussainmma, W/o. Narasappa and mother
of defendant Nos.1 and 2 bequeathed the suit property in
favour of the plaintiff. These two contentions raised by the
plaintiff is quite contradictory. The First Appellate Court on
proper appreciation of the materials on record, dismissed the
suit of the plaintiff, which do not call for any interference.
Therefore, he prayed for dismissal of the appeal with cost.
13. This Court, vide order dated 17.01.2017 framed the
following substantial question of law while admitting the
appeal;
"Whether the Lower Appellate Court was
justified in reversing the judgment of the trial Court
when the trial court had taken into consideration the
document at Ex.P16 and the manner in which the
witnesses had deposed before the Court below to
arrive at its conclusion?"
My answer to the above substantial question of law is in
the 'Negative' for the following:
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REASONS
14. It is the specific contention of the plaintiff that she
is in possession of the suit property on the basis of an
unregistered agreement for sale i.e. Ex.P16, said to have been
executed by Narasappa- father of defendant Nos.1 and 2.
Even though PW-1 the plaintiff speaks about the agreement for
sale referring to her possession, her evidence is not
satisfactory. The attesting witness to Ex.P16 was not examined
by the plaintiff for the reasons best known to her. Moreover, it
is an unregistered document whereunder the possession of the
property was said to have been handed over. When the plaintiff
seeks to protect her possession over the suit property based on
the agreement for sale- Ex.P16, it requires registration in view
of Section 17(1A) read with Section 49 of the Registration Act,
1908 and Section 53A of the Transfer of Property Act, 1882.
Therefore, the said document which is unregistered, cannot be
accepted, nor it can be relied on to accept the contention of the
plaintiff.
15. The plaintiff is relying on Exs.P1, 2 and 17 - the
record of rights in respect of the suit property. There is
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reference to MR No.7/2005-06 to show the name of the plaintiff
in column No.7 as owner in possession of the suit property. The
said MR No.7/2005-06 is not produced before the Court. It is
stated that as per MR No.7/2005-06, the name of the plaintiff
came to be entered on the basis of the so called Will said to
have been executed by Hussainmma, W/o. Narasappa i.e.,
mother of defendant Nos.1 and 2. Apparently it is not the
contention of the plaintiff that she is entitled for the suit
property on the basis of the Will said to have been executed by
Hussainmma. Therefore, the contention of the plaintiff that she
was put in possession of the suit property on the basis of the
unregistered agreement for sale which is not proved, cannot be
accepted. At the same time, the entry in Exs.P1 and 2 that the
name of the plaintiff was mutated as per MR No.7/2005-06 on
the basis of the Will also cannot be accepted.
16. The plaintiff has produced Exs.3 to 15 revenue
receipts for having paid the tax in respect of the suit property.
As per these documents, it was the plaintiff who paid the
revenue to the government since 1982 till 2007. Admittedly,
the defendants have not paid the land revenue, nor they have
produced any document to evidence the fact. There is
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absolutely no explanation as to why the defendants have not
paid the land revenue when it is their contention that they are
in possession of the suit property. The plaintiff stepped into
the witness box and spoke about the possession of the
property. She examined PWs.2 and 3 being the villagers, who
also deposed in support of the case of the plaintiff with regard
to her possession over the suit property.
17. The defendants examined DW-2 as an independent
witness to speak about their possession. But during cross-
examination, this witness categorically stated that he is not an
agriculturist, nor he is having any land at Hunoor village where
the suit property is situated. He categorically states that he
was working under defendant No.1. Therefore, he must have
deposed in his support. No importance could be attached to
the evidence of DW-2.
18. From the materials on record, it can be concluded
that the plaintiff is in possession of the suit property. Even the
contention regarding unregistered agreement for sale cannot be
accepted and the contention of defendant Nos.1 and 2 that
they are in possession of the suit property cannot be accepted.
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The possession of the plaintiff over the suit property is to be
protected till she is evicted in accordance with law. The
interference by defendant Nos.1 and 2 is probabilised by the
plaintiff by deposing as PW-1. Therefore, I am of the opinion
that the plaintiff is entitled for the relief of permanent
injunction against defendant Nos.1 and 2 till she is evicted in
accordance with law.
19. I have gone through the impugned judgment and
decree passed by the First Appellate Court. It has ignored all
these facts and circumstances and proceeded to allow the
appeal and dismiss the suit of the plaintiff. Since there are
materials placed before the Court to prove the possession of
the plaintiff, I answer the above substantial question of law in
the Negative and proceed to pass the following;
ORDER
1. The appeal is allowed with costs.
2. The impugned judgment and decree dated
30.03.2011 passed in R.A.No.9/2008 by the
learned Additional Senior Civil Judge and JMFC-1,
Raichur, is set aside.
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3. The judgment and decree dated 04.02.2008
passed in O.S.No.26/2007 by the learned Civil
Judge (Jr.Dn.), Devadurga, is restored. However,
it is held that the plaintiff is entitled for
permanent injunction against defendant Nos.1
and 2 till she is evicted from the suit property in
accordance with law.
The Registry is directed to send back the Trial Court and
the First Appellate Court records along with copies of this
judgment and decree.
Sd/-
JUDGE
PN
CT-VD
