Smt. Sharadamma vs Smt. Sannamma
2023 Latest Caselaw 6829 Kant

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                                                          NC: 2023:KHC:35227
                                                          RSA No. 73 of 2020




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                         DATED THIS THE 27TH DAY OF SEPTEMBER, 2023

                                            BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                    REGULAR SECOND APPEAL NO. 73 OF 2020 (DEC/INJ)

                   BETWEEN:

                   1.    SMT. SHARADAMMA
                         W/O. THIMMAPPA H.N.
                         AGED ABOUT 52 YEARS,
                         AGRICULTURIST,
                         R/O. HUNASAKATTE VILLAGE,
                         KASABA HOBLI,
                         HOSADURGA TALUK,
                         PIN: 577 501.
                                                                ...APPELLANT

                               (BY SMT. B.P.RADHA, ADVOCATE FOR
                             SRI B. RAMASWAMY IYENGAR, ADVOCATE)
                   AND:

                   1.    SMT. SANNAMMA
Digitally signed         W/O. ERAPPA,
by SHARANYA T            AGED ABOUT 62 YEARS,
Location: HIGH
COURT OF           2.    SRI RAMAPPA
KARNATAKA
                         S/O. ERAPPA,
                         AGED ABOUT 59 YEARS,
                   3.    SRI VENKATESHA
                         S/O. ERAPPA,
                         AGED ABOUT 42 YEARS,
                         ALL ARE AGRICULTURISTS,
                         R/O. CHITTAIAHNAHATTY VILLAGE,
                         KASABA HOBLI, HOSADURGA TALUK,
                         CHITRADURGA DISTRICT-577 501
                                                             ...RESPONDENTS
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                                              NC: 2023:KHC:35227
                                              RSA No. 73 of 2020




     THIS RSA IS FILED UNDER SEC.100 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED 06.09.2019 PASSED IN
R.A.NO.234/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND JMFC, HOSADURA, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 02.01.2016
PASSED IN O.S.NO.168/2011 ON THE FILE OF THE
ADDITIONAL CIVIL JUDGE AND JMFC AT HOSADURGA.

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

                           JUDGMENT

This matter is listed for admission and I have heard the

learned counsel for the appellant.

2. It is the case of the plaintiff that she is the absolute

owner of the suit schedule property and the defendants are

interfering with her lawful possession.

3. The defendants appeared and took the defence that

sale of suit schedule property made in favour of plaintiff by her

vendors is collusive and she is not entitled for any relief.

4. The Trial Court allowed the parties to lead evidence

and on appreciation of both oral and documentary evidence

placed on record, Court comes to the conclusion that the

plaintiff has not proved the fact that she is the absolute owner

and is in lawful possession and interference is not believed by

NC: 2023:KHC:35227 RSA No. 73 of 2020

the Trial Court and answered issue No.3 as 'affirmative' in

favour of the defendants and accepted the contention of the

defendants and dismissed the suit. Being aggrieved by the

judgment and decree of the Trial Court, an appeal is filed

before the First Appellate Court in R.A.No.234/2016 and the

First Appellate Court also, having considered the grounds urged

in the appeal memo, formulated the point whether the plaintiff

has proved before the Trial Court that her vendors namely

Smt. Surendrakumari and her husband Ramesh had absolute

right, title, interest and possession over the suit schedule

property to sell the same in her favour under registered sale

deed dated 08.06.2001 and whether the Trial Court is justified

in dismissing the suit and the First Appellate Court having

reconsidered the material on record, comes to the conclusion

that vendors of the plaintiff are not having any right to sell the

property and also comes to the conclusion that Trial Court

rightly appreciated both oral and documentary evidence placed

on record and it does not require any interference and

dismissed the appeal. Being aggrieved by the judgment and

decree of the Trial Court and the First Appellate Court, present

second appeal is filed before this Court.

NC: 2023:KHC:35227 RSA No. 73 of 2020

5. The main contention of the learned counsel for the

appellant before this Court is that the First Appellate Court

though framed several points for consideration, failed to see

the issue involved between the parties even though the Deputy

Commissioner has passed the order giving sound reasoning,

but, the First Appellate Court failed to understand the

provisions of PTCL Act and more particularly, Section 4(3) of

PTCL Act. Hence, this Court has to admit the appeal and frame

substantial question of law with regard to Section 4(3) of PTCL

Act, 1978 which clearly imposes a duty on the authority to

examine whether permission has been taken for transfer of the

granted land by the vendors of the defendants. Hence, this

Court has to admit the appeal and frame substantial question of

law.

6. Having heard the learned counsel for the appellant

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

the plaintiff before the Trial Court is that she is the absolute

owner of the suit schedule property and she has been in

possession of the suit schedule property and the defendants are

interfering with the possession of the property and in order to

substantiate her contention that she is the absolute owner and

NC: 2023:KHC:35227 RSA No. 73 of 2020

to prove her title, no material is placed before the Court, except

relying upon Ex.P2-certified copy of the order sheet and decree

passed in O.S.No.8/2000, wherein the vendors have filed the

suit for the relief of declaration and permanent injunction and

plaintiff also produced the document of Ex.P4-sale deed and the

Trial Court having considered the document of sale deed,

comes to the conclusion that very vendors were not having any

right to sell the property and the Trial Court has given the

reasoning that the very vendors of the plaintiff were not having

any title and accepted the contention of the defendants that the

vendors were not having any right.

7. The First Appellate Court also having formulated the

points and though the appellant took the contention with

regard to PTCL Act, 1978 the First Appellate Court comes to the

conclusion that the Trial Court is right in holding that the

plaintiff had acquired no right and title to the suit schedule

property and not committed any error. Having considered the

reasoning of the Trial Court and the First Appellate Court and

though the learned counsel for the appellant raised the

substantial question of law with regard to invoking Section 4(3)

of PTCL Act, 1978 and the same is not within the scope of this

NC: 2023:KHC:35227 RSA No. 73 of 2020

appeal and the very claim of the plaintiff before the Trial Court

is that she is the absolute owner and unless any material is

placed before the Court with regard to title is concerned, the

question of granting the relief of declaration and injunction

does not arise. Hence, I do not find any merit in the appeal to

invoke Section 100 of C.P.C. to admit the appeal and frame

substantial question of law.

Accordingly, the appeal is dismissed. In view of dismissal

of appeal, I.As, if any do not survive for consideration and the

same stand disposed of.

Sd/-

JUDGE

ST