Sri Shivanna vs Sri N V Gurubasavadevaru
2023 Latest Caselaw 6805 Kant

                                           RFA.861/2021
                              1

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 26 TH DAY OF SEPTEMBER, 2023

                        PRESENT

 THE HON'B LE MR. JUSTICE P. S.DINE SH KUMAR

                          AND

THE HON'BLE MR. JUSTICE T.G.SHIVASHANKARE GOWDA

              RFA NO.861 OF 2021 (POS)

BETWEEN:

SRI. SHIVANNA
S/O GANGAIAH
AGED ABOUT 50 YEARS
HALENIJAGALLU, SOMPURA HOBLI
NELAMANGALA TALUK
BENGALURU RURAL DISTRICT                  ... APPELLANT

(BY SRI.SIDDHARTH B. MUCHANDI, ADV.)

AND:

1.     SRI. N.V.GURUBASAVADEVARU
       S/O LATE VEERANNA
       AGED 65 YEARS

2.     SRI. N. R. SHIVARUDRAIAH
       S/O LATE REVANNA
       AGED 64 YEARS

       BOTH ARE R/O HALENIJAGALLU
       SOMPURA HOBLI, NELAMANGALA
       TALUK, BENGALURU RURAL DIST     ... RESPONDENTS

(BY SRI.VIJAYA KUMAR, ADV.)
                                                 RFA.861/2021
                           2

     THIS RFA IS FILED UNDER SECTION 96 READ WITH
ORDER 41 RULE 1 OF CPC AGAINST THE JUDGMENT AND
DECREE DATED 28.02.2020 PASSED IN OS.NO.171/2015 ON
THE FILE OF THE SENIOR CIVIL JUDGE, NELAMANGALA
DECREEING THE SUIT FOR POSSESSION AND PERMANENT
INJUNCTION.

     THIS RFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT   ON 20.09.2023 AND COMING ON FOR
PRONOUNCEMENT      OF    JUDGMENT    THIS   DAY,
T.G.SHIVASHANKARE     GOWDA   J., DELIVERED  THE
FOLLOWING:

                   JUDGMENT

In this appeal, the defendant has challenged

the judgment and decree dated 28.02.2020 passed

in O.S.No.171/2015 on the file of the Senior Civil

Judge, Nelamangala (for brevity 'the Trial Court') in

decreeing the suit of the plaintiffs directing the

defendant to hand-over vacant possession of the suit

schedule properties to the plaintiffs.

2. For the sake of convenience, parties shall be

referred as per their status before the Trial Court.

3. Brief facts of the plaintiffs' case are, the suit

schedule properties originally belonged to one

Heggunda Rudraiah, who is a grandfather of RFA.861/2021

plaintiffs. Heggunda Rudraiah had two sons viz.,

N.R.Veeranna and N.R.Revaiah, father of plaintiff

Nos.1 and 2 respectively. Both of them got their

father's properties through a Partition Deed dated

25.05.1975. Plaintiff No.1 and his three brothers

viz., N.V.Sadashivaiah, Late Veerabhadraiah and

N.V.Virupakshaiah have divided the properties by

Partition Deed dated 15.04.1994 and plaintiff No.1

got item Nos.1 and 3 of the suit schedule properties

and he has been in possession and enjoyment of the

same. Plaintiff No.2 and his two brothers viz.,

N.R.Shivashankaraiah and N.R.Rudreshaiah have

divided the properties by Partition Deed dated

20.01.1995 wherein item Nos.2 and 4 of the suit

schedule properties have fallen to the share of

plaintiff No.2 and he has been in possession and

enjoyment of the same.

3.1. The defendant has no right, title or

possession over the property. Six months prior to RFA.861/2021

filing of the suit, the defendant has tried to interfere

with possession of the plaintiffs and tried to trespass

over the property with an intention to lift the sand in

the suit properties. The plaintiffs were busy in the

marriage of younger son of plaintiff No.1 and they

were not able to visit the property. Taking

advantage of the said situation, the defendant has

trespassed and put up fence over the property,

thereby dispossessed the plaintiffs from the suit

schedule properties. The efforts made by the

plaintiffs by filing a complaint to Dabaspet Police

went in vain and they were advised to approach Civil

Court. Accordingly, they have filed the instant suit.

4. The defendant has resisted the suit by filing

written statement contending interalia that the suit is

not maintainable. It is his specific case that, in the

year 1989, he has taken the suit schedule properties

from the brothers of plaintiffs on yearly rental basis

and he was cultivating the suit schedule properties RFA.861/2021

as a lessee. Plaintiff No.1 has agreed to sell the item

Nos.1 and 3 for a consideration of Rs.1,50,000/- on

19.04.2000 and executed an agreement of sale in

his favour and received an advance consideration of

Rs.1,31,800/- and he was put in possession of item

Nos.1 and 3. Similarly, on 20.01.1995, plaintiff No.2

has executed an agreement to sell item No.2 and 4

for a consideration of Rs.1,60,000/- and received a

sum of Rs.1,24,050/- as advance and put the

defendant in possession of item Nos.2 and 4,

thereby the defendant is in lawful possession and

enjoyment of the suit schedule property since 1989.

4.1. It is further contended that the defendant

has filed a suit in O.S.No.255/2008 against the

plaintiffs seeking relief of specific performance of

contract. On 28.01.2010, a panchayat was

convened wherein plaintiffs have agreed to execute

the registered sale deed in favour of the defendant.

By virtue of such settlement the defendant, has RFA.861/2021

withdrawn the said suit on 29.01.2010. Thereafter,

the plaintiffs have not executed the registered sale

deed in his favour. At no point of time, the

defendant has trespassed into the suit schedule

properties. The plaintiffs suppressing the material

facts have filed the suit, which is liable to be

dismissed.

5. On the basis of the above pleadings, the

Trial Court has framed the following issues:

1) Whether the plaintiffs prove that the defendant has encroached the suit schedule properties?

2) Whether the plaintiffs prove that they are entitled for the possession of the suit schedule properties?

3) Whether the plaintiffs prove that they are entitled for relief as prayed in the suit?

4) What order or decree?

The Trial Court has re-casted issue No.1 as

follows:

RFA.861/2021

1) Whether the plaintiffs prove that the defendant has trespassed the suit schedule properties?

6. On behalf of the plaintiffs, one witness was

examined as PW-1 and 19 documents came to be

marked as Exs.P1 to P19. No evidence was let in on

behalf of the defendant.

7. The Trial Court after hearing the parties

recorded its finding on issue Nos.1 to 3 in favour of

plaintiffs and while answering issue No.4 directed the

defendant to deliver the vacant possession of the

suit properties. Aggrieved by the same, defendant

has filed this appeal on various grounds.

8. Heard the arguments of Sri.Siddharth

B.Muchandi, learned Counsel for the

appellant/defendant and Sri.Vijaya Kumar, learned

Counsel for respondents/plaintiffs.

9. It is the contention of the learned counsel for

defendant that, plaintiffs and their brothers have put RFA.861/2021

the defendant in possession of the suit schedule

properties in the year 1989. On 20.01.1995, plaintiff

No.2 executed an agreement of sale to sell item

Nos.2 and 4 and on 19.04.2000, plaintiff No.1

executed an agreement agreeing to sell suit item

Nos.1 and 3 in favour of the defendant and put the

defendant in possession of the property. They also

suppressed the fact of filing the suit by the

defendant in O.S.No.255/2008 for specific

performance and it ended in settlement driving the

defendant to withdraw the said suit. It is also

argued that the defendant has filed a suit in

O.S.No.329/2009 for injunction against the plaintiffs

and it came to be decreed by the Principal Civil

Judge (Jr.Dn.) and JMFC., Nelamangala on

22.02.2010. Instead of executing the sale deed, the

plaintiffs have filed the suit. The defendant is in

possession of the suit schedule properties as a lessee

and also as a holder of the sale agreement. Hence,

the finding recorded by the Trial Court that the RFA.861/2021

defendant is a trespasser is not proper and sought

for interference.

10. Per contra, learned counsel for the plaintiffs

has contended that in O.S.No.255/2008, the

plaintiffs have filed their written statement

specifically denying the execution of sale agreements

by plaintiff No.1 on 19.04.2000 and plaintiff No.2 on

20.01.1995 agreeing to sell the suit schedule

properties nor have they received any part

consideration. Without proving the same, the

defendant has withdrawn the suit, thereby he is

estopped from contending that he is the holder of

agreements. When the defendant is claiming that he

is in permissive possession of the property since

1989, he cannot claim that he was put in possession

of the property on 20.01.1995 or 19.04.2000. The

suit of the plaintiffs is based on title. They have

proved their title. The defendant has failed to prove

his right to be in possession of the property. The RFA.861/2021

Trial Court after appreciating the materials placed

before the Court decreed the suit and he supported

the impugned judgment.

11. We have given our anxious consideration to

the arguments addressed on behalf of both parties

and perused the records.

12. In the light of the rival contentions urged

by both parties, the points that arise for our

consideration are:

(i) Whether the plaintiffs have proved their title over the suit schedule property?

(ii) Whether the impugned judgment directing the defendant to deliver vacant possession of the property in favour of the plaintiffs is perverse and illegal and calls for our interference?

RFA.861/2021

Reg. Point No.1:

13. The undisputed fact is that, the land in

Sy.No.104/4 consists of 1 acre 20 guntas and land in

Sy.No.106/1 consists of 3 acres 2 guntas equally

belonging to plaintiff Nos.1 and 2 and they have

acquired the same by virtue of Partition Deeds dated

15.04.1994 and 20.01.1995. The fact that the

plaintiffs have obtained share in the said properties

has not been denied by the defendant. PW-

1/N.R.Shivarudraiah is plaintiff No.2, who has

adduced evidence on behalf of both plaintiffs and he

has produced the certified copy of the RTC extract as

per Exs.P14 to P17 and mutation extract as per

Exs.P18 and P19 which clearly demonstrates that

both plaintiffs are owners of the suit schedule

properties. In the written statement, the defendant

has stated that plaintiffs have executed the sale

agreement in his favour on 20.01.1995 and on

19.04.2000 agreeing to sell the said property. These RFA.861/2021

materials are sufficient to hold that the plaintiffs are

the owners of the suit schedule properties. Hence,

we answer point No.1 in favour of plaintiffs.

Reg.Point No.2:

14. It is the contention of the plaintiffs that six

months prior to filing of the suit on the guise of

lifting sand in the suit properties, the defendant

encroached and put the fence over the suit

properties. The defendant claims possession since

1989 and thereafter under separate agreements on

20.01.1995 and 19.04.2000. Admittedly, the

defendant had withdrawn the suit in

O.S.No.255/2008 filed to enforce the contracts

against the plaintiffs. What was the sale

consideration, the amount paid as advance, is not

brought in the evidence. Though agreements were

executed in the year 1995 and 2000, why the suit

was filed in the year 2008 is not explained by the

defendant. In the cross-examination of PW-1 on

behalf of the defendant, except asserting that RFA.861/2021

plaintiff No.1 had executed agreement of sale dated

19.04.2000 and plaintiff No.2 had executed the

agreement on 20.01.1995, there is no whisper that

the defendant was put in possession of the property

by the plaintiffs and their brothers in the year 1989.

Hence, the contention of the defendant that he was a

lessee in possession of the suit schedule property

from 1989 has not been substantiated. No

agreement is confronted to the plaintiffs nor

tendered before the Trial Court. The defendant has

not stepped into the witness box nor made any

attempt to prove the sale agreement said to have

been executed by plaintiff Nos.1 and 2. Even

assuming for the sake of argument that there existed

such agreements, the defendant has filed the suit in

the year 2008 and withdrawn the same, thereby he

has given up his right to enforce the agreements.

Admittedly, the defendant is in possession of the

property and there is no evidence to show that he is

in possession of the property by virtue of lease or RFA.861/2021

under the agreements. The defendant has, thus

failed to substantiate that he is entitled to be in

possession of the property forever.

15. We have carefully perused the impugned

judgment. The Trial Court based on the pleadings

and the evidence relied upon by the parties, has

recorded its finding that the plaintiffs are the

absolute owners of the suit schedule properties; the

defendant has no right, title or interest over the suit

schedule properties to continue in possession and is

liable to deliver possession to the plaintiffs. We do

not find any error in appreciation either of facts or

evidence of the parties. Hence, the finding recorded

by the Trial Court is based on legal pleadings and

evidence on record, which calls for no interference.

Therefore, the appeal is devoid of merits. In the

result, the following:

RFA.861/2021

ORDER

Appeal is dismissed with costs.

The impugned judgment and decree is hereby

confirmed.

In view of disposal of the appeal, I.A.No.1/2023

does not survive for consideration, hence, it stands

disposed of.

Sd/-

JUDGE

Sd/-

JUDGE

KNM/-

CT:HS