Sri Shivaramu vs Sri D V Shamanna
2023 Latest Caselaw 6876 Kant

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                                                     NC: 2023:KHC:35436
                                                    RSA No. 175 of 2021




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                       DATED THIS THE 29TH DAY OF SEPTEMBER, 2023

                                        BEFORE

                          THE HON'BLE MR JUSTICE H.P.SANDESH

                    REGULAR SECOND APPEAL NO.175 OF 2021 (DEC/INJ)

                   BETWEEN:

                   SRI SHIVARAMU
                   S/O LATE DODDA HANUMANTHAPPA,
                   AGED ABOUT 65 YEARS,
                   R/AT GUNDLAGURKI VILLAGE,
                   KASABA HOBLI,
                   CHICKBALLAPUR TALUK,
                   CHICKBALLAPUR DISTRICT-562101


                                                           ...APPELLANT
                   (BY SRI LOURDU MARIYAPPA A, ADVOCATE)
                   AND:
Digitally signed
by SHARANYA T
Location: HIGH     SRI D V SHAMANNA
COURT OF           S/O LATE DIMBARLAHALLI VENKATARAYAPPA,
KARNATAKA
                   AGED ABOUT 58 YEARS,
                   R/AT MANCHANABALE VILLAGE,
                   KASABA HOBLI, CHICKBALLAPURA TALUK,
                   CHICKBALLAPUR DISTRICT-562101


                                                        ...RESPONDENT

                       THIS RSA IS FILED UNDER SECTION 100 OF CPC
                   AGAINST THE JUDGMENT AND DECREE DATED 14.08.2019
                   PASSED IN RA.No.99/2018 ON THE FILE OF THE II
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                                           NC: 2023:KHC:35436
                                          RSA No. 175 of 2021




ADDITIONAL  SENIOR    CIVIL             JUDGE   AND     JMFC,
CHICKBALLAPURA AND ETC.

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


                      JUDGMENT

This matter is listed for admission. Heard the learned

counsel appearing for the appellant.

2. The factual matrix of the case of the plaintiff

before the Trial Court that the plaintiff is the absolute

owner and in peaceful possession and enjoyment of the

suit schedule property bearing Sy.No.12/6B totally

measuring 1 acre 20 guntas situated at Gundlagurki

village and claimed ownership to the extent of 20 guntas.

It is contended that the plaintiff had acquired the suit

schedule property through inheritance and father of the

plaintiff by name Dodda Hanumanthappa was in

possession and enjoyment of the suit schedule property

during his lifetime and he acquired the same through his

ancestors. After the death of Dodda Hanumanthappa, the

plaintiff being only son is in lawful possession and

NC: 2023:KHC:35436 RSA No. 175 of 2021

enjoyment of the suit schedule property. The defendant is

the owner in possession of the adjoining property and the

defendant has no manner of right, title, interest over the

suit schedule property as he is totally stranger to the

same. By colluding with neighbouring land owners, the

defendant tried to encroach and dispossess the plaintiff

with an intention to grab the valuable property. Hence,

prayed the Court to grant the relief of declaration and

permanent injunction.

3. On service of notice, the defendant appeared

before the Court and filed the written statement

contending that one Hanumanthappa was the propositus

and he got five sons namely Byrappa, Dodda Venkatappa

@ Matada Venkatappa, Bayanna, Chikka Venkatappa and

Kurigala Venkatarayappa and all are no more. All the five

sons have divided their properties very long back by

taking their respective shares of their joint family

properties by metes and bounds. It is also contended that

there were several other landed properties belonged to

NC: 2023:KHC:35436 RSA No. 175 of 2021

their joint family earlier, including the suit Sy.No.12/6B.

Among their other properties, Sy.No.13/3 is adjoined with

the western side of the said Sy.No.12/6B and forms a

single common plot. It is contended that in the said single

common plot, some northern portion was fallen to the

share of Byrappa who is grandfather of the plaintiff and

remaining southern part was fallen to the share of other

brothers of said Byrappa. It is further contended that the

said Byrappa has two wives by name Narayanamma and

Kempamma. The father of the plaintiff by name Dodda

Hanumanthappa and others were born through the first

wife and Dodda Hanumappa, Chikka Hanumappa and

another were born through the second wife.

4. It is further contended that the said Byrappa's

heirs have also divided the property very long back itself

by taking their respective shares from the share of said

Byrappa. It is contended that the said northern side

portion of Sy.No.13/3 and Sy.No.12/6B has been fallen to

the share of the father of the plaintiff by name Dodda

NC: 2023:KHC:35436 RSA No. 175 of 2021

Hanumanthappa and the plaintiff as a GPA holder of his

father had sold the above said property and conveyed a

registered sale deed dated 25.02.1976 in favour of one

Sriramaiah. It is further contended that the said

Sriramaiah has in turn sold the same on 16.08.1976 in

favour of one Doodamariyappa. Now the said

Doddamariyappa is in possession and enjoyment of the

property within the above said boundaries. But recently it

came to know that while effecting the katha by the

Tahasildar in the name of said Doddamariyappa, it was

wrongly mentioned Sy.No.12/6A instead of Sy.No.12/6B.

5. It is also contended that his wife T Kamalamma

is the absolute owner having right, title and interest and

enjoyment over the suit schedule property bearing

Sy.No.12/6A to an extent of 20 guntas and another

adjoined to the west of this Sy.No.13/4 to an extent of 27

guntas including karab and both the properties are

adjoined each other. It is also contended that the wife of

the defendant acquired the property within the above

NC: 2023:KHC:35436 RSA No. 175 of 2021

mentioned boundaries under the registered sale deed

dated 20.04.2009 from her vendor Papanna and others for

valuable consideration. Since from the date of purchase,

they are in possession and enjoyment of the property.

6. It is further contended that the plaintiff by

taking undue advantage of some extent of katha of

Sy.No.12/6B which is standing in his father's name,

though the same is sold by himself as stated supra long

back in the year 1976, in order to knock off the property

of the defendant's wife in Sy.No.12/6A, he has filed a false

and frivolous suit against him and the plaintiff never in

possession and enjoyment of the specific performance

within the boundaries of the suit schedule property.

7. The Trial Court having considered the pleadings

of the parties framed the Issues and additional Issues and

allowed the parties to lead their evidence. Thereafter,

considering the material on record comes to the conclusion

that the very plaintiff himself has sold the suit schedule

property as GPA holder in favour of one Sriramaiah vide

NC: 2023:KHC:35436 RSA No. 175 of 2021

sale deed dated 25.02.1976 in respect of Sy.No.12/6B

which is fallen to the share of father of the plaintiff and

even boundary shown in the said sale deed has been

admitted by PW1 during the course of cross-examination

and while selling the property by mistake mentioned

Sy.No.14 instead of Sy.No.12/6B and comes to the

conclusion that when the property was sold in favour of

Sriramaiah and said Sriramaiah in turn sold the same in

respect of Doddamariyappa vide sale deed dated

16.08.1976, the question of claiming the title does not

arise. Hence, all the Issues framed in respect of the

plaintiff answered as Negative and dismissed the suit.

8. Being aggrieved by the judgment and decree of

the Trial Court, an appeal was preferred before the First

Appellate Court. The First Appellate Court having

considered the grounds urged in the appeal and also on

re-appreciation of material on record comes to the

conclusion that the Trial Court has not committed any

error in dismissing the suit of the plaintiff and dismissed

NC: 2023:KHC:35436 RSA No. 175 of 2021

the appeal. Being aggrieved by the judgment and decree

of the First Appellate Court, the second appeal is filed

before this Court by the plaintiff.

9. The learned counsel appearing for the appellant

would vehemently contend that both the Courts without

appreciating both oral and documentary evidence placed

on record passed the perverse and unsustainable

judgment and decree. The counsel would vehemently

contend that the plaintiff had acquired the suit schedule

property through inheritance by Dodda Hanumanthappa

who is the father of the plaintiff was in peaceful possession

and enjoyment during his lifetime. Both the Courts came

to the conclusion that the plaintiff has not produced any

title deed to prove that the suit land belongs to him. The

Trial Court not believed the version of the plaintiff and

erroneously comes to the conclusion that the plaintiff has

not made out the case and the First Appellate Court also

not appreciated the same. Hence, this Court has to admit

the appeal and frame the substantial question of law.

NC: 2023:KHC:35436 RSA No. 175 of 2021

10. Having heard the learned counsel appearing for

the appellant and also on perusal of the material on record

it discloses that the suit is filed for the relief of declaration

to declare that the plaintiff is the absolute owner of the

suit schedule property i.e., Sy.No.12/6B measuring 1 acre

20 guntas. Out of which, for 22 guntas, subsequently

changed the survey number as Sy.No.12/9. In order to

substantiate the said contention, except relying upon the

oral evidence and RTC, not produced any documents. On

the other hand, the defendant has produced the document

of sale deeds at Ex.D41 to 43 and those documents are

material document and apart from that Ex.D18 to D20 -

the sale deeds also produced. The plaintiff also not

disputed the fact that as a GPA holder, he has sold the

property belongs to his father. The Trial Court in detail

discussed that instead of mentioning Sy.No.12/6B by

mistake, it is mentioned as Sy.No.14. The Trial Court as

well as the First Appellate Court taken note of the

boundaries which have been mentioned in the sale deed

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NC: 2023:KHC:35436 RSA No. 175 of 2021

executed by the plaintiff in favour of one Sriramaiah and

the said Sriramaiah in turn sold the same in favour of one

Doddamariyappa and hence, there are two sale deeds of

the year 1976 itself that is on 25.02.1976 and 16.08.1976

and the property also mutated based on the sale deeds.

11. It is also the case of the parties that effecting

the katha by the Tahsildar in the name of defendant, it is

wrongly mentioned as Sy.No.12/6A instead of

Sy.No.12/6B. The Trial Court also in paragraph 52 taken

note regarding some discrepancy in mentioning the survey

numbers. The First Appellate Court also reassessed the

material on record and taken note of the boundaries

mentioned in the sale deed. The First Appellate Court

observed that once the property was sold by the plaintiff

as GPA holder in respect of property which was allotted in

favour of his father, the plaintiff cannot claim relief in

respect of the said property. The First Appellate Court

comes to the conclusion that the Trial Court has not

committed any error in dismissing the suit of the plaintiff

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NC: 2023:KHC:35436 RSA No. 175 of 2021

and the plaintiff has to establish his title when the suit is

filed for the relief of declaration without depending on the

weakness of the defendant. Hence, I do not find any error

committed by the Trial Court as well as the First Appellate

Court and both the Courts have given anxious

consideration to the material on record and in the absence

of any perversity, the question of invoking Section 100 of

CPC does not arise. Hence, the appellant has not made

out any grounds to admit the appeal and frame the

substantial question of law.

12. In view of the discussions made above, I pass

the following:

ORDER

The appeal is dismissed.

Sd/-

JUDGE

SN