Karnataka High Court
Sri Jagadeeshappa vs Smt Guramma on 25 October, 2023
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25th DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.S.A. NO.628/2017 (DEC)
BETWEEN:
1. SRI JAGADEESHAPPA
S/O LATE OBAPPA,
AGED ABOUT 42 YEARS,
R/AT HIREBENNUR VILLAGE,
CHITRADURGA TALUK-577 501 ...APPELLANT
(BY SRI M.S.BHAGAVATH, SENIOR ADVOCATE FOR
SRI VENKATASWAMY, ADVOCATE)
AND:
SMT. GURAMMA
SINCE DEAD BY LRS,
1. SRI MANJANNA,
S/O SRI SURAPPAIAH,
AGED ABOUT 40 YEARS,
R/AT HIREBENNUR VILLAGE,
CHITRADURGA TALUK-577 501
2. SMT. NAGAMMA
W/O LATE MUTHYAPPA,
AGED ABOUT 42 YEARS,
R/AT HIREBENNUR VILLAGE,
CHITRADURGA TALUK-577 501
3. SRI HANUMANTHAPPA
S/O LATE GURAPPA,
2
AGED ABOUT 52 YEARS,
R/AT HIREBENNUR VILLAGE,
CHITRADURGA TALUK-577 501. ... RESPONDENTS
(BY SRI H.N.SHASHIDHAR, SENIOR ADVOCATE FOR
SRI H.S.SUHAS, ADVOCATE FOR R2;
R1 AND R3 ARE SERVED)
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC, 1908.,
AGAINST THE JUDGMENT AND DECREE DATED 30.1.2017
PASSED IN R.A.NO.38/2016 ON THE FILE OF THE 1ST ADDL.
SENIOR CIVIL JUDGE, CHITRADURGA. ALLOWING THE APPEAL
AND SETTING ASIDE THE JUDGMENT AND DECREE DATED
16.2.2016 PASSED IN O.S.NO.620/2009 ON THE FILE OF THE III
ADDL. CIVIL JUDGE AND JMFC, CHITRADURGA.
THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 03.10.2023 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
Heard the appellant's counsel and also the counsel
appearing for the respondents.
2. The factual matrix of the case of the plaintiff before
the Trial Court that the land bearing Sy.No.31/5 to an extent of
6 acres 35 guntas is situated at Hirebennur Village, Chitradurga
Taluk is ancestral property of the plaintiff. One late
Hanumanthappa S/o Adivappa had four sons namely Rangappa,
Gurappa, Kampalappa and Obappa. In the family partition,
Rangappa and Gurappa got the land in re-Sy.No.33/1, the other
two sons Kampalappa and Obappa got their respective share to
an extent of 3 acres 15 guntas and 3 acres 20 guntas out of 6
acres 35 guntas in the re-Sy.No.31/5 and in terms of the said
partition, both of them are enjoying the property. The father of
the plaintiff had gifted the land to an extent of 20 guntas on
10.05.1963 through gift deed in favour of defendant No.1. The
remaining land the plaintiff's father was in possession and
enjoyment. Defendant No.1 had executed the sale deed in
favour of her daughter who is defendant No.2 to an extent of 1
acre 35 guntas on 29.05.1999 instead of 20 guntas without
having any right and interest. Defendant No.1 had no locus
standi to sell the excess land except 20 guntas. Defendant No.2
was in unauthorized possession and enjoyment of the land to an
extent of 1 acre 35 guntas instead of 20 guntas in the suit
schedule property. Defendant No.3 had no land in the suit
schedule property and inspite of that he had encroached and
possessed an extent of 1 acre 25 guntas in the suit schedule
property and Khata of the suit schedule property an extent of 1
acre 25 guntas was changed in favour of defendant No.3 and
defendant No.3 had colluded with revenue officials and got
changed the khata in favour of him. Now defendant No.3 was in
unauthorized possession and enjoyment of the land to an extent
of 1 acre 25 guntas in the suit schedule property. Defendant
No.3 had no right, title, interest whatsoever in the suit schedule
property to an extent of 1 acre 25 guntas. Defendant No.1 had
filed an appeal before the Tahsildar, Chitradurga in RRTCR
18/04-05 against the plaintiff. The said appeal was dismissed
and mistake was rectified. As per the orders 1 acre 15 guntas of
land was changed in the name of the plaintiff. 20 guntas of land
changed in favour of defendant No.2. Aggrieved by the orders of
the Tahsildar, the plaintiff had filed an appeal before the
Assistant Commissioner in R.A.No.83/2002 against the
defendants No.1 and 2 and the said appeal was dismissed on
24.9.2004. However, directed the Tahsildar to investigate and
rectify the mistake and take action as per the land revenue Act
and Rules. As per the direction of the Assistant Commissioner,
Chitradurga, 1 acre 15 guntas of land was changed in favour of
the plaintiff. In fact the plaintiff was entitled to get 3 acres in the
suit schedule property. Hence, suit is filed for the relief of
declaration and consequential relief of possession from the
defendants No.2 and 3 and to grant permanent injunction
restraining the defendants from interfering with peaceful
possession and enjoyment of the suit schedule property.
3. In pursuance of the suit summons defendants
appeared through their respective counsel and filed written
statement denying the plaint averments. Defendants Nos.1 and
2 contend that the land bearing Sy.No.31/5 to an extent of 6
acres 35 guntas is not ancestral property of the plaintiff. During
the course of partition among the father of defendant No.1 and
his brothers, Hanumanthappa and Obappa in the year 1964,
property to an extent of 6 acres 35 guntas fallen to his share,
out of the said property the father of defendant No.1 sold to an
extent of 5 acres and retained 1 acre 35 guntas with him.
Further the defendant No.1 admitted the gift of 20 guntas of
land by the father of plaintiff. After death of her father
Huchappa, the defendant No.1 succeeded to the whole property
to an extent of 1 acre 35 guntas inherited property and also 20
guntas of gifted property, in total to an extent of 2 acres 15
guntas.
4. It is contended that neighbouring land owners
encroached her 20 guntas of land, as such she is in possession
of only 1 acre 35 guntas of land. Defendant No.1 as given the
said property to her daughter who is defendant No.2 herein in
the partition deed dated 2.5.1997. Since from the date of
partition, defendant No.2 become the absolute owner of 1 acre
35 guntas and also got khata to that extent from past 40 years
and the defendant is in possession of 1 acre 35 guntas. The
plaintiff by using his influence got changed the entry in the
revenue records to an extent of 20 guntas in the name of
defendant No.2 which is not sustainable. The suit is also barred
by limitation. The possession of the defendant over 1 acre 35
guntas of land was perfected by way of adverse possession. It is
also the contention that defendant No.3 in the written statement
contend that his father had purchased 2 acres 5 guntas of land
from one P.Karidyamappa in respect of Sy.No.31/5 through
registered sale deed dated 03.03.1972. Since from the date of
purchase, defendant No.3 and his father are in possession and
enjoyment of the land to the extent of 2 acres 5 guntas and
hence, prayed this Court to dismiss the suit.
5. The Trial Court having considered the pleadings of
the parties recasted the issues, whether the plaintiff is the
absolute owner of the suit schedule property to an extent of 3
acres out of 3 acre 20 guntas and whether the plaintiff proves
that defendant Nos.1 and 2 have encroached the land measuring
1 acre 15 guntas of plaintiff and also having considered the
pleading of defendant No.3 recasted the issue whether
defendant No.3 proves that the sale deed executed by late
Karidyamappa on 03.03.1972 in favour of defendant No.3 and
his father binds legitimate share of the plaintiff.
6. The Trial Court having considered the oral evidence
of PW1 and documentary evidence Exs.P1 to P13 and also
considering the evidence of PW2 who is the uncle of PW1 and
also the evidence of DWs.1 and 2 and Exs.D1 to D9, answered
point Nos.1 and 2 as partly affirmative and also answered issue
No.3 in the affirmative in coming to the conclusion that already
there was a sale in favour of defendant No.3 and partly decreed
the suit and directed defendants No.1 and 2 to deliver the
unauthorized portion to an extent of 1 acre 15 guntas to the
plaintiff which is part of suit property, since the Court has
declared the plaintiff is the owner in possession of schedule
property to an extent of 1 acre 15 guntas.
7. Being aggrieved by the judgment and decree of the
Trial Court, defendant No.1 filed the appeal and the same is
numbered as R.A.38/2016 and the First Appellate Court having
considered the grounds urged in the appeal memo and
contentions of the appellant formulated the point, whether the
plaintiff proves his title over the suit schedule property to an
extent of 3 acres out of 3 acres 20 guntas, whether plaintiff
further proves the unauthorized possession of defendant Nos.1
and 2 over the suit schedule property and whether the findings
of the Trial Court needs unauthorized and on re-appreciation of
material available on record, the First Appellate Court answered
the point as negative in coming to the conclusion that not proved
the title to the extent of 3 acres and also failed to prove
unauthorized possession by defendants No.1 and 2 and comes to
the conclusion that findings of the Trial Court requires
interference and allowed the appeal and dismissed the suit filed
by the plaintiff.
8. Being aggrieved by the judgment and decree of the
First Appellate Court, the present second appeal is filed. This
Court having considered the grounds urged in the appeal has
framed the substantial questions of law,
"Whether the First Appellate Court was
justified in holding that the plaintiff has not
proved the identity and description of the suit
schedule property and dismissing the suit of the
plaintiff?"
9. The counsel appearing for the appellant in his
argument vehemently contend that the Trial Court rightly
decreed the suit. It is the claim of the plaintiff before the Trial
Court that Sy.No.31/5 totally measuring 6 acres 35 guntas and
the same is an ancestral property of plaintiff. One
Hanumanthappa had four sons and other property bearing
Sy.No.33/1 was allotted to two sons and present suit schedule
property allotted to Kampalappa and father of the plaintiff in
terms of the partition deed dated 10.5.1963, the plaintiff's father
got 3 acres 20 guntas and partition deed is also produced as
document Ex.P1. The counsel also would submit that father of
the plaintiff executed the gift deed in favour of defendant No.1 in
terms of Ex.P2 gift deed vide gift deed dated 10.05.1963 i.e. on
the date of deed both oral and documentary evidence placed on
record. The counsel would vehemently contend that even though
property gifted to the extent of 20 guntas, defendant No.1 sold 1
acre 15 guntas in favour of defendant No.2 and defendant 1 was
not having any right to sell the property to the extent of 1 acre
15 guntas. The counsel also vehemently contend that in
paragraph No.3 of the plaint, the plaintiff has specifically pleaded
how the property has derived to the family of the plaintiff and
also gifting of property to the extent of only 20 guntas. The
counsel would vehemently contend that they have encroached
the property to the extent of 1 acre 15 guntas. Defendant No.3
also filed written statement contending that property was sold in
favour of him by Karidyamappa and the same has been denied
by the plaintiff and no document is placed before the Court and
the same has been denied and the sale has also has not been
proved. The counsel would vehemently contend that when the
Trial Court granted the decree and the same has been reversed
by the First Appellate Court and brought to notice of this Court
discussion made in paragraph No.17 of First Appellate Court
judgment and contend that the very approach of the First
Appellate Court is erroneous.
10. The counsel appearing for respondent No.2 in his
argument vehemently contend that the First Appellate Court has
not committed any error, since the sale deed has not been
challenged by the plaintiff executed by defendant No.1 in favour
of defendant No.2 and also the sale deed in favour of defendant
No.3. The counsel also vehemently contend that the prayer in
the plaint is very bald and with regard to the encroachment is
also concerned, no specific pleading and on what date the same
was encroached and also on what extent encroachment was
made. The plaintiff sought only decree based on the partition
deed and First Appellate Court also comes to conclusion that
very identity of the property has not been proved by the plaintiff
and hence dismissed the suit. The counsel also brought to notice
of this Court the evidence of PWs.1 and 2 and also defendant
No.3 produced any sale deed as suggested that plaintiff's father
had sold the property to Karidyamappa. The counsel also
brought to notice of this Court the contention taken by
defendants No.1 and 2 in paragraph No.4 of the written
statement and counsel would vehemently contend that the
appellate Court has not committed any error in dismissing the
suit.
11. Having heard the appellant's counsel and also the
counsel appearing for the respondents and also considering the
material available on record and in keeping the substantial
questions of law framed by this Court, whether the First
Appellate Court committed an error in holding that plaintiff has
not proved the identity and description of the suit schedule
property and dismissing of the suit is erroneous.
12. Having considered the substantial questions of law
and material it is very clear that the plaintiff claims the title in
respect of the suit schedule property while seeking the relief of
declaration based on the partition deed and none of the parties
disputes the partition deed dated 10.5.1963 and it is the claim of
defendants 1 and 2 in the written statement that entire extent of
6 acres 35 guntas of land in Sy.No.31/5 is not the ancestral
property as claimed by the plaintiff. It is contended that during
the course of partition among the father of defendant No.1 and
his brothers in the year 1963, property to an extent of 6 acres
35 guntas fallen to his share. Out of the said property, the father
of defendant No.1 sold to an extent of 5 acres and retained 1
acre 35 guntas with him.
13. In order to substantiate this contention, defendants
No.1 and 2 have not placed any material before the Trial Court
and hence, the Trial Court disbelieved the contentions of
defendants No.1 and 2 and comes to the conclusion that the
very claim of defendants No.1 and 2 to the extent of 1 acre 35
guntas has not been accepted. However, the very plaintiff has
pleaded that out of 3 acres 20 guntas which has been allotted in
favour of the plaintiff's father and on the very same, he had
executed a gift deed to an extent of 20 guntas in favour of
defendant No.1 i.e. on 10.5.1963. The execution of gift deed is
not in dispute and it is the claim of the plaintiff that after gifting
20 guntas of land, the plaintiff's father had retained 3 acres of
the land and hence, sought for relief of declaration. It is also
important to note that, defendant No.1 not disputes the fact of
execution of gift deed, but claims that his father has got the
entire 6 acres 35 guntas and I have already pointed out that no
document is produced, if father had got entire extent of 6 acres
and 35 guntas and sold to the extent of 5 acres 20 guntas and
retained 1 acre 15 guntas and plaintiff's father how he got right
to gift the property in favour of defendant No.1, there is no
explanation, but admits the gift deed. It is also the case of the
plaintiff that defendant No.1 sold the property in favour of
defendant No.2 i.e. her daughter by executing the sale deed to
an extent of 1 acre 35 guntas and it is the specific case of the
plaintiff also that she was not having any right and in order to
substantiate the same, defendant No.1 also not placed any
material to sell the property in favour of her daughter to the
extent of 1 acre 35 guntas and the same is also observed by the
Trial Court.
14. Defendants No.1 and 2 totally claimed 2 acres 15
guntas and contend that adjacent owner encroached 20 guntas
of land out of 2 acres 15 guntas and they are having possession
with them to the extent of 1 acre 35 guntas and the same is also
not substantiated by placing any material. Hence, it is clear that
only 20 guntas of land gifted in favour of defendant No.1 and
defendant No.1 is having right only to the extent of 20 guntas to
sell the property in favour of defendant No.2. It is the specific
claim of defendant No.3 that the sale deed was executed by late
Karidyamappa on 3.3.1972 in favour of defendant No.3 and the
sale deed executed by the father of the plaintiff binds him. It is
important to note that, there were revenue disputes between the
parties before Tahsildar and the Assistant Commissioner. It is
also important to note that, defendants No.1 and 2 claims right
in respect of the suit schedule property based on the registered
partition deed dated 2.5.1997 and I have already pointed out
that only extent of 20 guntas of gift was made in favour of
defendant No.1 and registered partition deed dated 2.5.1997
does not create any right.
15. The Trial Court also taken note of the fact that father
of plaintiff has got 3 acres 20 guntas of the land in the family
partition and also taken note of 20 guntas of gift made in favour
of defendant No.1, the partition deed i.e. Ex.D1 dated 2.5.1997
executed between defendant No.2 and son of defendant No.1
and this document is clear that same is created only for the
purpose of creating revenue documents and the same doest not
confer any right, since they have not any title to that extent. It
is also important to note that the Trial Court rightly observed in
paragraph No.15 that revenue document will not create any title
and also taken note of defendants No.1 and 2 are not produced
any cogent material to prove their contention.
16. The Trial Court also taken note of the fact that DW1
has given an admission that out of 3 acres 20 gutnas which was
allotted to the Obappa, 20 guntas of land was gifted in favour of
his mother and hence, their claim that 6 acres 35 guntas
defendant No.1 father was having right cannot be accepted. It is
the claim of defendant No.3 that there was a sale in favour of
him and he has produced document of sale deed Ex.D8 and the
sale deed is dated 3.3.1972 and defendant No.3 himself
examined as DW2 i.e. Exs.D8 and D9 i.e. RTC and nothing in the
cross examination is elicited with regard to the said sale deed
which has been relied upon by defendant No.3 and he relies
upon right in respect of his claim is concerned Ex.D8 and having
perused the same on eastern side of the schedule property, the
property of father of plaintiff was in existence, PW1 also in the
cross examination has clearly admitted that the property which
was sold, an admission was given that on the East land of
Obappa and on the west Gundigathi Basappa's land and on the
North Kamplappa's land and on the South Kampalappa's land
and the same was also taken note of by the Trial Court in
paragraph No.17 which clearly fortifies the sale of part of suit
property to defendant No.3 and description is also given in the
said sale deed and total extent of 3 acres in the name of Obappa
is also shown in the said document and the said transaction was
also shown in column 12 and the same was also taken note of
and there was a sale in the name of Karidyamappa in the year
1971-1972. The schedule are admitted by PW1 and schedule
shown in sale deed is one and the same and hence, the Trial
Court believed the transaction and also rightly comes to the
conclusion that plaintiff has concealed the said transaction and
though the contention of the defendants that entire property was
sold and the same is not accepted.
17. Having taken note of Ex.D8, the Trial Court comes to
the conclusion that some properties left with Obappa and comes
to the conclusion that plaintiff was not able to prove his title over
3 acres of land and also taken note of at the same time his plea
cannot be over looked based on the mere pleadings rather than
cogent proof.
18. The Trial Court taken note of Ex.P8 and also taken
note of the schedule and also taken note of the averments made
in the sale deed particularly on the East, the property of
Obalappa is shown in Ex.D8 and answered the same considering
particular description given in Ex.D8 and hence granted the
decree against defendants No.1 and 2 to deliver the
unauthorized portion to the extent of 1 acre 15 guntas. But the
Trial Court also failed to take note of the fact that when the
property to the extent of 2 acres 5 guntas was sold by the father
of the plaintiff and document Ex.D8 is considered and also no
dispute with regard to execution of gift deed of defendant No.1
to the extent of 20 guntas and it comes to 2 acres 25 guntas
and only remains 35 guntas to the plaintiff and Trial Court
committed an error in declaring the plaintiff is owner in
possession of to an extent of 1 acre 15 guntas in Sy.No.31/5 and
no doubt it has come to conclusion that unauthorisedly
defendants No.1 and 2 are in possession directed to deliver the
unauthorized portion to the extent of 1 acre 15 guntas and the
very total remaining land is only 35 guntas with the plaintiff's
father and hence, plaintiff is entitled to get the unauthorized
occupation of the property to the extent of 35 guntas from
defendants No.1 and 2.
19. However, the First Appellate Court fails to take note
of these materials before the Court and committed an error in
coming to the conclusion that boundaries are shown to the
property measuring 3 acres claimed for declaration and having
perused the original plaint, no doubt at the first instance filed
the suit for the relief of declaration to the extent of 6 acres 35
guntas and subsequently the same is amended to the extent of 3
acres 20 guntas and also not in dispute that 20 guntas was
gifted in terms of the document Ex.D2 and also it is important to
note that Trial Court taken note of Ex.D8 under which 2 acres 5
guntas was sold and the said document also contains the
description of the property and as per gift deed Ex.P2 boundaries
of 20 guntas, he has gifted away eastern side of 20 guntas in
favour of defendant No.1. But First Appellate Court comes to the
conclusion that very identification of 3 acres is very difficult and
when the description is given in Ex.D2 as well as in Ex.D8, the
very approach of the First Appellate Court is erroneous and
committed an error in coming to the conclusion that the plaintiff
has failed to prove the very description of the property and
though defendants No.1 and 2 claims more extent and this Court
already comes to the conclusion that valid document is only gift
deed which is undisputed. But First Appellate Court committed
an error in coming to the conclusion that plaintiff has not proved
the identity and description of the suit schedule property and
dismissed the suit of the plaintiff and having considered Ex.D2
and Ex.D8, description of the property gifted and sold and
remaining extent of property is belongs to the plaintiff and ought
not to have dismissed the suit in its entirety and committed an
error and the very approach of the First Appellate Court is
erroneous. The Trial Court has given the reasoning in coming to
such a conclusion and the same is reversed by the First
Appellate Court and not applied its judicious mind and fails to
take note of the document Exs.D2 and 8 and erroneously comes
to the conclusion that the plaintiff has not proved the identity
and description of the schedule property. No dispute with regard
to the title to the extent of 3 acres 20 guntas belongs to the
plaintiff's father under the partition of the year 1963 and on the
very same day extended the gift deed to the extent of 20 guntas
on the eastern side of property and description is also given in
terms of Ex.D8 to the extent which has been sold. No doubt the
sale deed of defendant No.3 has not been challenged and also
sale deed executed by defendant No.1 in favour of defendant
No.2 is also not challenged and no need to challenge the same
when defendant No.1 is not having any right to sell more than
20 guntas. Hence the very approach of First Appellate Court is
erroneous and hence, I answered the point as affirmative and
the First Appellate Court was not justified in holding that plaintiff
has not proved the identity and description of the suit schedule
property and committed an error in dismissing the suit of the
plaintiff in its entirety, hence, finding of the First Appellate Court
requires to be set aside and the judgment and decree of the Trial
Court has to be restored to the extent of 35 guntas and not 1
acre 15 guntas as held by the Trial Court and defendants No.1
and 2 are directed to deliver the encroached portion in favour of
the plaintiff to the extent of 35 guntas.
20. In view of the discussions made above, I pass the
following:
ORDER
The appeal is allowed. Impugned judgment of the First
Appellate Court is set aside and suit of the plaintiff is decreed by
restoring the order of the Trial Court only to the extent of 35
guntas. The defendants No.1 and 2 are directed to deliver the
possession to the plaintiff to the extent of 35 guntas excluding
the sold portion and gifted portion which is in occupation of
defendants No.1 and 2.
If defendants No.1 and 2 fail to deliver the encroached
portion in favour of the plaintiff, the plaintiff/appellant is entitled
to take possession in accordance with law.
Sd/-
JUDGE
AP
