Karnataka High Court
Mahesh K vs Elyanna Gowda on 7 August, 2024
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RSA No. 1495 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 1495 OF 2015
(DEC/INJ)
BETWEEN:
MAHESH K
AGED ABOUT 34 YEARS,
S/O M. SHANKARANARAYANA BHATTA,
R/AT UDALARU, GOLITHOTU VILLAGE
PUTTUR TALUK. D.K 574240.
...APPELLANT
(BY SRI. ASHISH RAM, ADVOCATE FOR
SRI. KRISHNAMOORTHY D., ADVOCATE)
AND:
ELYANNA GOWDA
Digitally AGED ABOUT 70 YEARS,
signed by R S/O KANTHU GOWDA,
DEEPA R/AT PUCHATHOTTU,
Location: NELYADI VILLAGE,
HIGH PUTTUR TALUK 574229.
COURT OF ...RESPONDENT
KARNATAKA (BY SRI. SUYOG HERELE E., ADVOCATE)
THIS RSA IS FILED UNDER SEC.100 OF CPC., 1908,
AGAINST THE JUDGMENT AND DECREE DATED 25.04.2015
PASSED IN RA NO.30/2012 ON THE FILE OF THE ADDITIONAL
SENIOR CIVIL JUDGE & JMFC., PUTTUR, DISMISSING THE
APPEAL AND CONFIRMING JUDGMENT AND DECREE DATED
21.08.2012 PASSED IN O.S.NO.103/2005 ON THE FILE OF THE
PRINCIPAL CIVIL JUDGE & JMFC.,PUTTUR.
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RSA No. 1495 of 2015
THIS APPEAL, COMING ON FOR ADMISSION, 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 appellant
challenging the judgment and decree dated 25.04.2015,
passed in R.A.No.30/2012 by the Additional Senior Civil
Judge and J.M.F.C. at Puttur, D.K, confirming the
judgment and decree dated 21.08.2012 passed in
O.S.No.103/2005 by the Principal Civil Judge and JMFC, at
Puttur.
2. For the sake of convenience, parties are
referred to as per their ranking before the trial Court. The
appellant is the plaintiff and respondent is the defendant.
The plaintiff filed a suit for declaration of title and
permanent injunction.
3. The brief facts leading rise to filing of this
appeal are as under:
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It is the case of the plaintiff that, the plaintiff is the
absolute owner of 'A' schedule properties and he had
purchased the suit 'A' schedule properties from one
Smt. Duggamma W/o Vardhana Gowda on 18.08.2005
under a registered sale deed. The vendor of the plaintiff
delivered the actual possession of 'A' schedule properties.
Since from the date of purchase, the plaintiff is in
possession and enjoyment of the suit 'A' schedule
properties. It is contended that, the plaintiff occupied the
residential house situated in suit 'A' schedule properties
and the properties are mutated in the name of the
plaintiff. The defendant challenged the order of mutation
before the Assistant Commissioner, Puttur. The Assistant
Commissioner allowed the appeal and directed the
incorporation of name of the defendant by means of an
order dated 22.02.2006. The plaintiff challenged the same
before the Deputy Commissioner in revision RAP 324/05-
06 and same was dismissed vide order dated 28.08.2007.
The petitioner aggrieved by the orders of the Assistant
Commissioner and the Deputy Commissioner, preferred
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writ petition in W.P.No.15452/2007 before the Hon'ble
High Court. Further, it is contended that the Hon'ble High
Court dismissed the writ petition granting liberty to the
plaintiff to prove his title in the Civil Court. The vendor of
the plaintiff died on 16.10.2005 leaving behind the no
children. Hence, the defendant is not at all related to the
vendor of the plaintiff Duggamma. The defendant has no
manner of right, title or interest over the suit schedule
properties. Hence, cause of action arose for the plaintiff to
file a suit for declaration of title and permanent injunction.
4. The defendant filed the written statement
denying the averments made in the plaint. It is contended
that, the suit schedule properties and other properties
were owned and possessed by Vardhana Gowda and as
per the registered partition deed dated 26.01.1937, the
land was allotted to the share of Vardhana Gowda.
Vardhana Gowda has executed a registered settlement
deed dated 13.03.1972. Vardhana Gowda married to one
Ramakka. Out of their wedlock, they got one son by name
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Elyanna Gowda. The said Elyanna Gowda died long back
where after Ramakka (wife of Vardhana Gowda) also died.
After the death of Ramakka, Vardhana Gowda married to
Duggamma, but they did not have any children out of
their wedlock. As such he developed love and affection
towards the defendant, as the defendant is his brother's
son and the defendant was residing with Vardhana Gowda.
Vardhana Gowda was cultivating the suit properties and
also other properties. The defendant was cultivating the
suit schedule properties. Duggamma was then old and
she was doing domestic work. Vardhana Gowda was 66
years old in the year 1972. He has executed a registered
settlement deed and reserved the right to enjoy the suit
properties during his life time. In the said settlement deed,
it is also recited that if Smt. Duggamma is not willing to
reside with the defendant then on her demand in writing,
she is to be paid maintenance of 4 muras of rice per year.
Even though she did not request to pay maintenance. It is
also contended that Duggamma filed a suit in
O.S.No.150/1998 and the plaint was returned on
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jurisdiction point and it was presented before the Senior
Division Court and was renumbered as O.S.No.47/2005.
The plaintiff is also aware of the said suit, but intentionally
the plaintiff has not revealed the same in the plaint. It is
contended that based on the settlement deed, the
defendant became the absolute owner of the suit
properties along with other properties. Duggamma has no
right to execute a registered sale deed in favour of the
plaintiff. The said sale deed is without any right, title or
interest. Hence, prayed to dismiss the suit.
5. The Trial Court, on the basis of the above said
pleadings, framed the issues and additional issues.
6. The plaintiff in order to substantiate his case,
examined himself as PW.1 and examined one witness as
PW.2 and got marked 7 documents as Exs.P1 to P7. In
rebuttal, defendant examined himself as DW-1 and got
marked 6 documents as Exs.D1 to D6. The trial Court on
assessment of oral and documentary evidence of the
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parties, answered issue Nos.1 to 3, additional issue Nos.1,
3 and 4 in the negative, additional issue No.2 in the
affirmative and issue No.4 as per the final order. The suit
of the plaintiff was dismissed with costs vide judgment
dated 21.08.2012.
7. The plaintiff aggrieved by the judgment and
decree passed in O.S.No.103/2005, preferred an appeal in
R.A.No.30/2012 on the file of Additional Senior Civil Judge
and JMFC, at Puttur, D.K.
8. The First Appellate Court, after hearing the
parties, has framed the points for consideration.
9. The First Appellate Court, on re-assessing the
oral and documentary evidence, answered point Nos.1, 3
and 4 in the negative, point No.2 in the affirmative and
point No.5 as per the final order. The appeal filed by the
appellant was dismissed vide judgment dated 25.04.2015,
confirming the judgment and decree passed by the trial
Court. The plaintiff, aggrieved by the judgment and
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decree passed by the Courts below, has filed this regular
second appeal.
10. Heard the learned counsel for the plaintiff.
11. Learned counsel for the plaintiff submits that
the Courts below have committed an error in ignoring the
validity of the registered document as per Ex.P4 i.e., the
original sale deed executed by Duggamma in favour of the
plaintiff. He submits that Duggamma acquired the title by
virtue of the settlement deed and she was having a right
to alienate the suit schedule properties. The plaintiff has
acquired the title by virtue of Ex.P4. He submits that the
Courts below have not properly considered the material
placed on record. Hence,the Courts below have
committed an error in passing the impugned judgments.
Accordingly, on these grounds, he prays to allow the
appeal.
12. Perused the records and considered the
submissions of learned counsel for the plaintiff.
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13. It is not in dispute that the suit schedule
properties were owned and possessed by Vardhana
Gowda and during his lifetime, he had executed a
settlement deed on 30.03.1972. As per Ex.D6, Duggamma
was allowed to enjoy the suit schedule properties and after
the death of Duggamma, the defendant should enjoy the
said properties. Admittedly, from the perusal of Ex.D6,
Duggamma was having limited interest during her lifetime
over the suit properties. Duggamma executed a registered
sale deed in favour of the plaintiff as per Ex.P4. The
Duggamma, during her lifetime, filed a suit in
O.S.No.150/1998 for the relief of declaration that she is
the absolute owner of the suit schedule properties and
consequently sought relief of permanent injunction. The
copy of the plaint is marked as Ex.D3. From the perusal of
Ex.D3, Duggamma herself has denied about the execution
of the settlement deed and she had pleaded in the plaint
that, the said document purported to be a registered
settlement deed is fabricated by the present defendant
herein, wherein Duggamma herself disputed the
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document, i.e., the deed of settlement and she herself
claims to be the absolute owner of the suit schedule
properties. The said suit came to be dismissed. The said
Duggamma after filing a suit in O.S.No.150/1998,
executed a registered sale deed in favour of the plaintiff
on 18.08.2005 as per Ex.P4. The suit filed by Duggamma
was dismissed. Hence, Duggamma was not the absolute
owner of the suit schedule properties. The defendant was
the absolute owner of the suit schedule properties by
virtue of Ex.D6. Hence, Duggamma executed a registered
sale deed in favour of the plaintiff without having any
right, title or interest over the suit schedule properties.
The plaintiff has not acquired any title by virtue of a
registered sale deed as per Ex.P4. The trial Court, on the
assessment of oral and documentary evidence, has rightly
held that the plaintiff has failed to prove that he is the
absolute owner of the plaint 'A' schedule properties on the
strength of the registered sale deed dated 18.08.2005 and
dismissed the suit. The First Appellate Court, on
reappreciation of oral and documentary evidence, has
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rightly dismissed the appeal. I do not find any substantial
question of law that arises for consideration in this appeal.
14. In view of the above discussion, I proceed to
pass the following:
ORDER
The appeal is dismissed.
The judgments and decree passed by the
Courts below are hereby confirmed.
No order as to the costs.
Sd/-
(ASHOK S.KINAGI)
JUDGE
