Karnataka High Court
Sri Siddaiah Aliash Kariyappa vs Puttaswamy M Dead By Lrs on 6 August, 2024
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RSA No. 706 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO.706 OF 2011 (INJ)
BETWEEN:
1. SRI SIDDAIAH ALIASH KARIYAPPA
AGED 70 YEARS, S/O SIDDAIAH
SINCE DEAD BY HIS LEGAL REPRESENTATIVE'S
1(A) SMT. RACHAMMA
AGED ABOUT 70 YEARS
W/O LATE SIDDAIAH ALIAS KARIYAPPA
1(B) SRI. K. RAVINANDANA
AGED ABOUT 41 YEARS
S/O LATE SIDDAIAH ALIAS KARIYAPPA
1(C) SRI K. RUDRAMURTHY
Digitally AGED ABOUT 38 YEARS
signed by R S/O LATE SIDDAIAH ALIAS KARIYAPPA
DEEPA
Location: 1(D) SRI. K. GANGADHARA
HIGH COURT AGED ABOUT 32 YEARS
OF S/O LATE SIDDAIAH ALIAS KARIYAPPA
KARNATAKA
APPELLANTS No.1(A) TO (D) ARE
R/AT No.4023/5, 7TH CROSS
MISSION SCHOOL ROAD
GANDHINAGAR, LAKSHKAR MOHALLA
MYSURU - 570 001.
1(E) SMT. BHAGYAMMA
AGED ABOUT 51 YEARS
D/O LATE SIDDAIAH ALIAS KARIYAPPA
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RSA No. 706 of 2011
W/O SRI SIDDARAJU
No.2689, KEERTHI NAGAR, MALAVALLI
MANDYA DISTRICT - 571 430
1(F) SMT. SHIVAMMA
AGED ABOUT 49 YEARS
D/O LATE SIDDAIAH ALIAS KARIYAPPA
D.NO.72, VANIVILAS, YADAVAGIRI
RAILWAY QUARTERS, MYSURU - 570 020
1(G) SMT . JAYAMMA
AGED ABOUT 47 YEARS
D/O LATE SIDDAIAH ALIAS KARIYAPPA
W/O SRI. SHANKAR
No.4353, 6TH CROSS, 6TH MAIN
GANDHINAGAR, MYSURU - 570 001
1(H) SMT. SHOBHARANI
AGED ABOUT 34 YEARS
D/O LATE SIDDAIAH ALIAS KARIYAPPA
W/O SRI PRAKASH
No.4387, 10TH CROSS, ST. MARY'S ROAD
N.R. MOHALLA, MYSURU - 570 007
1(J) KUM YASHODHA
AGED ABOUT 29 YEARS
D/O LATE SIDDAIAH ALIAS KARIYAPPA
R/AT No.4023/5, 7TH CROSS
MISSION SCHOOL ROAD
GANDHINAGAR, LASHKAR MOHALLA
MYSURU - 570 001.
2. SMT PUTTAMMA
AGED ABOUT 60 YEARS
D/O NINGAPPA R/AT NO.4023/5,
7TH CROSS, MISSION SCHOOL ROAD,
LASHKAR MOHALLA, MYSORE
SINCE DECEASED, APPELLANT No.1 IS HER
LEGAL REPRESENTATIVE.
...APPELLANTS
(BY SRI. Y K NARAYANA SHARMA, ADVOCATE FOR
SRI. Y V PRAKASH, ADVOCATE)
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RSA No. 706 of 2011
AND:
1. PUTTASWAMY M
DEAD BY LEGAL REPRESENTATIVES
1(A) SRI P MAHESH (SUNDAR) , MAJOR
1(B) SRI P GIRIMARI, MAJOR
1(C) SMT P MANJULA, MAJOR
SINCE DEAD BY HER LEGAL REPRESENTATIVE'S
(i) SRI. RAJU
S/O SRI MANCHAIAH
AGED ABOUT 65 YEARS
(ii) SRI. SUNIL
S/O SRI. RAJU AND LATE P. MANJULA
AGED ABOUT 30 YEARS
(iii) SRI. CHANDAN
S/O SRI. RAJU AND LATE P. MANJULA
AGED ABOUT 26 YEARS
(iv) SRI. SAGAR
S/O SRI. RAJU AND LATE P. MANJULA
AGED ABOUT 24 YEARS
(v) SMT. ASHWINI
S/O SRI. RAJU AND LATE P. MANJULA
AGED ABOUT 28 YEARS
RESPONDENTS No.1(C) (i-v) ARE
R/AT 8TH CROSS, MISSION ROAD
GANDHINAGAR, MYSURU - 570 001
1(D) SRI P RAJU, MAJOR
1(E) SRI P PRAKASH, MAJOR
1(F) SMT P PRAMILA, MAJOR
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RSA No. 706 of 2011
1(G) SRI P VIJAY, MAJOR
1(H) SRI P SURESH, MAJOR
DEAD, RESPONDENT Nos.1(A) TO (G) AND (I) ARE
HIS LEGAL REPRESENTATIVES
1(I) SRI P RAVI,MAJOR
ALL ARE CHILDREN OF SRI. PUTTASWAMY M.
R/OF NO.4020/4, 7TH CROSS, MISSION ROAD,
GANDHINAGAR, MYSORE - 570 001.
...RESPONDENTS
(BY SRI. V.S. NAIK, ADVOCATE FOR R1(A TO G & I
R1(C)(i-v) ARE SERVED
SRI. N.NANJUNDASWAMY, ADV. FOR R1(A,D,E,F,G & I)
THIS RSA IS FILED UNDER SEC.100 R/W ORDER XXXXI,
RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE
DATED 5.2.2011 PASSED IN R.A.NO.70/2006 ON THE FILE OF
THE IV ADDL. DISTRICT & SESSIONS JUDGE, MYSORE,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 28.8.2001 PASSED IN O.S.NO.943/94 ON
THE FILE OF THE III ADDL. I CIVIL JUDGE (JR.DN) MYSORE.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI
ORAL JUDGMENT
This regular second appeal is filed by the appellants
challenging the judgment and decree dated 05.02.2011
passed in R.A.No.70/2006 by the IV Additional District and
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Sessions Judge, Mysore, confirming the judgment and
decree dated 28.08.2001 passed in O.S.No.943/1994 by
the III Additional Civil Judge (Jr. Dn.) Mysore.
2. The parties are referred to as per their ranking
before the trial Court. The appellants are the legal
representatives of the defendant, who died during the
pendency of the appeal and respondents are the legal
representatives of the plaintiff, who died subsequent to
disposal of the regular appeal and their legal
representatives are brought on record. The plaintiff filed a
suit for declaration of title and for possession.
3. Brief facts of the case are as under:
It is the case of the plaintiff that, the plaintiff is the
owner of the house mentioned in the suit schedule
property and the defendant has no manner or right
whatsoever over the suit schedule property and that one
Siddaiah S/o Ningaiah was the original owner of the suit
schedule house and the said Siddaiah mortgaged the suit
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schedule house with possession to the plaintiff under a
registered mortgage deed dated 30.11.1972 and the said
Siddaiah has taken the schedule premise on lease on the
very day i.e., on 30.11.1972 from the plaintiff on a
monthly rent of Rs.60/-. Subsequently, sold the suit
schedule property under a registered sale deed dated
14.12.1973 for valuable consideration to the plaintiff and
continued to be the tenant under the plaintiff. The said
Siddaiah sub-leased the suit schedule property to the
defendant in the year 1989 and also one Chikkarangaiah
of different portions and the said Siddaiah continued to be
in possession of other portion of the suit schedule
property. The plaintiff filed eviction petition under the
provision of the Karnataka Rent Control Act, 1961 in HRC
No.405/1989. The said HRC petition is pending. One of the
sub-tenant Chikkarangaiah vacated the premises in which
they were residing which is the portion of the schedule
premises and subsequent to their vacating of the said
portion, the present defendant unauthorisedly occupied
the entire house and continued to be in possession of the
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entire suit schedule house. It is contended that, the
plaintiff is the owner of the suit schedule property and the
defendant has no right to continue in possession of the
suit schedule house property. The plaintiff requested the
defendant to vacate and handover the vacant possession
of the suit schedule property. The defendant refused to
handover the vacant possession of the suit schedule
property. Hence, cause of action arose for the plaintiff to
file a suit for declaration and possession.
4. The defendant filed the written statement
contending that the suit filed by the plaintiff is not
maintainable either in law or on facts and denied that the
plaintiff is the owner of the suit schedule property and
Siddaiah was the original owner of the plaint schedule
property. It is contended that, the defendant is not aware
whether the plaintiff has secured any mortgage deed from
Siddaiah on 30.11.1972. Siddaiah had no manner of right,
title or interest over the suit schedule property and has no
right to execute the registered sale deed in favour of the
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plaintiff. The sale deed and mortgage deed are invalid
documents and are not binding on the defendant. It is
contended that the suit house property originally belonged
to the paternal grandfather of the defendant i.e.,
Kadyappa, hence, the defendant become the absolute
owner of the plaint schedule property, has got every right
to enjoy the same. Hence, prayed to dismiss the suit.
5. The Trial Court, on the basis of the above said
pleadings, framed the following issues:
1) Whether plaintiff proves that the defendant
has stated to put up construction
unauthorisedly in the plaint schedule
property and has tried to sublet the same
to some other person?
2) Whether defendant proves that suit
schedule property is the ancestral property
and he is the absolute owner of the same?
3) Whether plaintiff is entitled to the relief
claimed in the suit?
4) What order or decree?
6. The plaintiff in order to substantiate his case,
examined himself as PW.1 and got marked 12 documents
as Exs.P1 to P12. On the other hand, the defendant was
examined as DW.1 and got marked 02 documents as
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Exs.D1 and D2. The trial Court after recording the
evidence of the parties, hearing on both the sides, and on
assessment of oral and documentary evidence, answered
issue No.1 in the affirmative, issue No.2 in the negative,
issue No.3 partly in the affirmative and issue No.4 as per
the final order. The suit of the plaintiff was partly decreed
and the defendant restrained by means of permanent
injunction from proceeding with any construction in any
portion of the suit schedule property and leasing out the
same in favour of any other person and it is further
declared that the plaintiff is the owner of the suit schedule
property having purchased under the registered sale deed.
The defendant aggrieved by the judgment and decree
passed in O.S.No.943/1994 preferred an appeal in
R.A.No.70/2006 on the file of learned IV Additional District
and Sessions Judge, Mysore.
7. The First Appellate Court, after hearing the
parties, has framed the following points for consideration:
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1) Whether there are just and reasonable
grounds to allow plaintiff to lead oral and
documentary evidence?
2) Whether plaintiff proves that he is owner of
the suit property?
3) Whether there are just and reasonable
grounds to interfere in the judgment and
decree of Trial Court?
8. The First Appellate Court, after re-assessment
of the oral and documentary evidence, answered point
Nos.1 and 3 in the negative and point No.2 in the
affirmative. The appeal was rejected vide judgment dated
05.02.2011.
9. The defendant, aggrieved by the impugned
judgments, filed this regular second appeal.
10. Heard learned counsel for the defendant and
also the learned counsel for the plaintiff.
11. Learned counsel for the defendant submits that
the plaintiff has filed a suit for declaration and possession,
wherein the trial Court has granted a relief of declaration,
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but refused to grant a relief of possession. He submits that
the plaintiff has not acquired any title by virtue of
registered sale deed. He submits that the Courts below
have committed an error in passing the impugned
judgments. Hence, on these grounds, he prays to remand
the matter to the trial Court.
12. Per contra, learned counsel for the plaintiff
supports the impugned judgments and decree passed by
the courts below and prays to dismiss the appeal.
13. Perused the records and considered the
submissions of learned counsel for the parties.
14. This court admitted the appeal on the following
substantial question of law :
"Whether the courts below are legally
justified in partly decreeing the suit of the
plaintiff declaring that plaintiff is the owner
of plaint schedule property without
granting the relief of recovery of
possession of the plaint schedule
property?"
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15. Substantial question of law: It is the case of
the plaintiff that, the plaintiff is the owner of the suit
schedule property and the defendant is in possession as a
tenant. The plaintiff in order to substantiate his case,
examined himself as PW.1 and he has reiterated the plaint
averments in the examination-in-chief. Further, in order to
establish that, the plaintiff is the owner of the suit
schedule property, the plaintiff got marked the documents
i.e., Ex.P1 is the katha extract in respect of suit schedule
property, Ex.P2 is the affidavit of Siddaiah S/o Ningaiah
and affidavit stating that at the first instance, he
mortgaged the said house to M.Puttaswamy S/o late
Madaiah under a registered mortgage deed dated
30.11.1972 and took the same on lease at Rs.60/- p.m.
He continued to be in possession as a tenant and he sold
the said house to the mortgage Puttaswamy i.e., the
plaintiff herein by receiving full consideration amount
under a registered sale deed dated 14.12.1973 after
deducting the mortgage amount and he continued to be
the tenant under the same rate of rent. Further, he has
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stated that he has got only younger sister by name
Siddamma @ Puttamma. She also filed an affidavit stating
that Siddappa was the full owner of the said house. Hence,
the katha was changed to his name before selling the
same to the plaintiff. It is contended that said Siddaiah
S/o Nagaiah allowed the defendant as sub-tenant to
occupy a portion of the house sold to the plaintiff in the
year 1989 and he continued to occupy a portion of the
said house as tenant paying a rent of Rs.30/- p.m. Ex.P3
is the original registered sale deed, which discloses that
Siddiah hasd sold the suit property in favour of the
plaintiff, Ex.P4 is the mortgage deed, Ex.P5 is the rent
agreement, Ex.P6 is the katha endorsement, Exs.P7 and
P8 are the kandayam receipts, Ex.P9 is the nil
encumbrance certificate, Ex.P9 is the order of interlocutory
application, Ex.P10 is the encumbrance certificate, Ex.P11
is the katha extract, Ex.P12 is the letter issued by MCC.
16. From the perusal of oral evidence of PW.1 and
documents produced by the plaintiff, it discloses that in
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the course of cross-examination, except suggesting that
the defendant is the owner of the suit schedule property,
nothing has been elicited from the mouth of this witness.
17. In rebuttal, the defendant examined as DW.1
and he has reiterated the written statement averments
and further, in order to prove his defence, he has
produced the documents i.e., Ex.D1 is the certified copy of
the katha endorsement and Ex.D2 is the certified copy of
the tax paid receipt.
18. From the perusal of oral evidence of plaintiff
and the defendant, it is the case of the plaintiff that, he
had purchased the property under Ex.P3 from Siddaiah
and further, Siddaiah continued to be in possession of the
suit schedule property as a tenant. The said Siddaiah had
let out the portion of the suit schedule property to the
defendant and other tenants vacated the portion of the
property and handed over the same to the plaintiff. It is
the case of the plaintiff that, the defendant occupied the
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entire suit schedule property and the defendant is in
possession of the suit schedule property as
sub-tenant. The said fact has been denied by the
defendant. Further, the plaintiff has also filed eviction
petition under the provision of Karnataka Rent Control
Act,1999. During the pendency of eviction petition, the
plaintiff has filed this suit for declaration of title,
possession and permanent injunction. The trial Court held
that the plaintiff has proved that he is the owner of the
suit schedule property by virtue of Ex.P3, however, the
trial Court declined to grant a relief of possession on the
ground that the plaintiff has filed the eviction petition
under Section 21(1)(h) and (f) of the Karnataka Rent
Control Act, 1999 in HRC No.405/1989 on the file of II
Additional, I Munsiff, Mysuru and the said petition is
pending. Hence, on the said ground, the trial court
declined to grant a relief of possession. The trial Court
committed an error without looking into the relief sought
by the plaintiff in the plaint. The plaintiff also sought for
relief of possession. The plaintiff has also admitted that
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the defendant is in possession of the suit schedule
property and granted permanent injunction. As observed
above, the trial Court has committed an error in declining
to grant a relief of possession only on the ground that HRC
proceedings are pending before the HRC Court. The
defendant aggrieved by the judgment, preferred an appeal
in R.A.No.70/2006. The plaintiff neither has challenged the
finding recorded by the trial Court and the judgment
passed, declining to grant a relief of possession, nor has
filed any cross appeal. The defendant aggrieved by the
judgment of the trial Court has preferred an appeal in
R.A.No.70/2006. Even the First Appellate Court without
considering that the plaintiff has sought for a relief of
possession, has simply confirmed the judgment and
decree passed by the trial Court. Both the courts below
have committed an error in declining to grant a relief of
possession, when the plaintiff has sought for a relief of
possession. As the said matter requires reconsideration by
the trial Court, learned counsel for the defendant submits
that the matter may be remanded to the trial Court to
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reconsider the suit. Hence, in view of the above
discussion, I answer substantial question in the
affirmative.
19. In view of the above discussion, I proceed to
pass the following:
ORDER
i. The appeal is allowed.
ii. The impugned judgments are set aside.
iii. The suit is restored. The trial court is directed to
hear the arguments and pass appropriate order in
accordance with law.
iv. As the suit is the of year 1994, the trial court is
requested to dispose off the suit as expeditiously
as possible, within a period of one year from the
date of receipt of copy of this order.
v. Parties are directed to appear before the trial
Court on 30.09.2024, without awaiting any further
notice from the trial Court.
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vi. Office is directed to transmit the records to the
trial Court forthwith.
vii. All the contentions of the parties are kept open.
Sd/-
(ASHOK S.KINAGI)
JUDGE
SSB
