Sri B Shivaramaiah vs Smt Jayamma
2023 Latest Caselaw 6245 Kant

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                                                     NC: 2023:KHC:31526
                                                  RSA No. 1650 of 2021




                IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                      DATED THIS THE 1ST DAY OF SEPTEMBER, 2023

                                       BEFORE

                        THE HON'BLE MR JUSTICE H.P.SANDESH

              REGULAR SECOND APPEAL NO.1650 OF 2021 (DEC/INJ)

              BETWEEN:

                  SRI B SHIVARAMAIAH
                  SON OF BYRANNA
                  AGED ABOUT 50 YEARS,
                  RESIDING AT INDIRANAGARA
                  NELAMANGALA TOWN

                  REPRESENTED BY HIS GPA HOLDER
                  SRI VIJAY
                  SON OF NAGAPPA
                  AGED ABOUT 58 YEARS,
                  RESIDING AT INDIRA NAGAR
                  NELAMANGALA TOWN
                  PIN CODE - 562 123
                                                            ...APPELLANT
Digitally signed         (BY SRI. SIDDAMALLAPPA P M, ADVOCATE)
by SHARANYA T
Location: HIGH AND:
COURT OF
KARNATAKA
                  SMT JAYAMMA
                  WIFE OF GOVINDAPPA
                  AGED ABOUT 62 YEARS,
                  RESIDING AT NELAMANGALA TOWN
                  BANGALORE RURAL DISTRICT
                  PIN CODE - 562 123
                                                         ...RESPONDENT

                   THIS RSA IS FILED UNDER SECTION 100 OF CPC,
              PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED
              16.04.2016 PASSED IN O.S.NO.47/1992, PASSED BY THE
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                                                 NC: 2023:KHC:31526
                                            RSA No. 1650 of 2021




LEARNED PRINCIPAL CIVIL JUDGE AND JMFC, NELAMANGALA
AND JUDGMENT AND DECREE DATED 02.03.2021 PASSED BY
THE LEARNED 2ND ADDITIONAL SENIOR CIVIL JUDGE,
NELAMANGALA, IN R.A.NO.64/2016 AND ORDER TO DISMISS
THE SUIT IN O.S.NO.47/1992, ON THE FILE OF LEARNED
PRINCIPAL CIVIL JUDGE AND JMFC, NELAMANGALA BY
ALLOWING THE ABOVE APPEAL WITH EXEMPLARY COSTS, IN
THE INTEREST OF JUSTICE AND EQUITY.

     THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:


                          JUDGMENT

Heard the learned counsel for appellant. This matter is

listed for admission.

2. The factual matrix of the case of the

plaintiff/respondent before the Trial Court that, the plaintiff is

the absolute owner of the property which is morefully described

in the schedule and the same is purchased for a valuable

consideration from the Chief Officer of Town Municipal Council,

Nelamangala, under a registered sale deed dated 21.08.1980.

The plaintiff is in the possession of the suit schedule property.

The defendant is a stranger and trying to interfere with the

property of the plaintiff and made an attempt to put up the

building over the suit schedule property, with great difficulty,

the same is resisted.

NC: 2023:KHC:31526 RSA No. 1650 of 2021

3. In pursuance of the suit summons, the

defendant has appeared and filed written statement claiming

that Town Municipal, Nelamangala has allotted the suit

schedule property to the defendant's vendor, under a resolution

dated 30.11.1978 and also executed lease cum sale certificate

dated 15.04.1981 to the defendant's vendor and all the

revenue records are changed in the name of vendor of the

defendant. The defendant's vendor was in peaceful possession

and enjoyment of the suit schedule property and the defendant

had purchased the same from the vendor vide registered sale

deed dated 20.06.1991. The defendant is in peaceful

possession and enjoyment of the suit schedule property as

absolute owner.

4. It is also the contention of the defendant that

after the purchase the defendant has obtained a license and

approved plan from the Mandal Panchayathi, Nelamangala for

construction of building in the suit schedule property and also

contended that the suit is barred by time under law of

limitation and hence, prayed the Court to dismiss the suit.

5. The Trial Court based on the pleadings,

framed the issues on 25.02.1993 and subsequently in view of

NC: 2023:KHC:31526 RSA No. 1650 of 2021

the rival pleadings of the parties, issues are recasted and

allowed the parties to lead evidence. The Trial Court having

considered the rival pleadings framed the issues and also

considering both oral and documentary evidence placed on

record answered all the issues and issue Nos.1 and 2 are

answered as affirmative which are framed on 03.07.1997 and

also subsequent issue No.3 to 5 as negative and also the earlier

issues which are framed on 25.02.1993 i.e., issue Nos.1 to 3

are answered as affirmative.

6. The very contention of the defendant that the

suit is barred by limitation is answered as negative and

regarding the issue that the Trial Court has no pecuniary

jurisdiction to entertain the suit is also answered as negative

and the issue with regard to the defendant has perfected his

title by adverse possession is answered as negative and the

Trial Court has granted the relief of declaration in favour of the

plaintiff as absolute owner and also granted permanent

injunction.

7. Being aggrieved by the said judgment and

decree, an appeal is filed in RA No.54/2016 and the First

Appellate Court also based on the grounds urged in the appeal

NC: 2023:KHC:31526 RSA No. 1650 of 2021

has formulated the point as whether the Court below has

committed an error in declaring that the plaintiff is the absolute

owner of the property and he is in possession and whether the

Trial Court is justified in granting the relief of declaration and

injunction and whether it requires any interference. The First

Appellate Court on re-appreciation of both oral and

documentary evidence, answered the point No.1 as negative in

coming to the conclusion that the Trial Court has not erred in

holding that the plaintiff is the absolute owner and not

committed any error and Court is justified in granting

declaration and injunction and it does not requires any

interference.

8. Being aggrieved by the said judgment and

decree of concurrent finding, the present second appeal is filed

before this Court. The counsel appearing for appellant would

vehemently contend that both the Courts below have

committed an error in not appreciating both oral and

documentary evidence and fails to take note of the earlier

resolution passed in the year 1978 itself. The counsel would

vehemently contend that both the Courts fails to consider the

pleadings, both oral and documentary evidence and the Courts

NC: 2023:KHC:31526 RSA No. 1650 of 2021

are not justified in decreeing the suit without considering the

persisting right of the appellant over the suit schedule property

as there was a earlier resolution in favour of appellant. Hence,

this Court has to admit and frame substantive question of law

and also on perusal of material available on record, the very

contention of the appellant that there was a earlier resolution

on 30.11.1978 in favour of the appellant herein.

9. Though the sale deed was executed

subsequently on 15.04.1981 when there was a resolution in

respect of the very same property and the same has not been

considered by both Trial Court as well as the First Appellate

Court. The said contention cannot be accepted and merely

because of the resolution prior to the execution of the sale deed

and same is not convey any right, the sale deed admittedly

executed in favour of respondent herein on 21.08.1980 and

subsequent sale deed in favour of the appellant dated

15.04.1981 does not convey any right. Since the property was

already sold and prior sale deed was in favour of the

respondent herein i.e., dated 21.08.1980 and also the plaintiff

prayed relief upon the document of receipt of payment made

prior to the sale deed and also relies upon the meeting

NC: 2023:KHC:31526 RSA No. 1650 of 2021

proceedings dated 31.11.1978, letter issued by the Chief

Secretary of the Bengaluru Rural Zilla parishath, encumbrance

certificate, meeting proceedings of the CMC also and when such

materials are placed before the Trial Court, the Trial Court and

the First Appellate Court having considered the material on

record dismissed the suit. No doubt the defendant also relied

upon endorsement which is marked as Ex.D2 as well as sale

deed under which the property was purchased marked as

Ex.D3, assessment list as Ex.D4 and lease cum sale certificate

as Ex.D5 and there is no dispute with regard to the claim made

by the plaintiff as well as the defendant in respect of the very

same property. Both are claiming in respect of the very same

property and when such being the case, when there was a sale

deed in favour of the plaintiff/respondent on 21.08.1980 itself,

thereafter subsequent sale deed was executed in favour of the

appellant and same does not convey any right.

10. Both the Trial Court and First Appellate Court

have taken note of the said material on record and rightly

answered the issues framed in favour of the

plaintiff/respondent. Hence, I do not find any error committed

by the Trial Court as well as the First Appellate Court. On

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appreciation of both oral and documentary evidence, both

Courts have given anxious consideration by considering

material on record, unless any perversity found in the judgment

of the Trial Court as well as the First Appellate Court both in

respect of fact finding and also the question of law, I do not

find any ground to admit the appeal and frame substantive

question of law by invoking Section 100 of CPC.

10. In view of the discussion made above, I pass

the following:

ORDER

The second appeal is dismissed.

Sd/-

JUDGE

RHS