Karnataka High Court
Sri. Annaiahappa vs Smt. Indiramma on 1 February, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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RSA No. 1425 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 1425 OF 2019
(DEC/INJ)
BETWEEN:
SRI. ANNAIAHAPPA
S/O CHIKKANARAYANAYAPPA,
AGED ABOUT 47 YEARS,
R/A WARD NO.5,
NEAR COUNCILLOR SUBBANNA'S HOUSE,
KURUBARAPET,
KOLAR CITY-563101.
...APPELLANT
Digitally
signed by (BY SRI. S VISWESWARAIAH.,ADVOCATE)
SUMA B N
Location: High
Court of
Karnataka AND:
1. SMT. INDIRAMMA
W/O KRISHNAPPA
D/O LATE M MUNIVENKATAPPA
AGED ABOUT 57 YEARS
R/A KURUBARAPET
KOLAR CITY-563101.
2. SMT GOWRAMMA
W/O M ANJANAPPA,
-2-
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RSA No. 1425 of 2019
D/O LATE M MUNIVENKATAPPA,
AGED ABOUT 53 YEARS,
R/A NAGAVARA VILLAGE,
ARABI COLLEGE POST,
TANEY ROAD,
BENGALURU.
3. SMT RUKMINI
W/O V LAKSHMINARAYANA,
D/O LATE M MUNIVENKATAPPA,
AGED ABOUT 51 YEARS,
R/A JAKKASANDRA,
BENGALURU.
4. SMT MANJULA
W/O M SRINIVAS,
D/O LATE M MUNIVENKATAPPA,
AGED MAJOR,
R/A HALLANDAHALLI VILLAGE,
UTHANUR POST,
MULABAGAL TALUK,
KOLAR DISTRICT.
5. SRI MANJUNATH
S/O LATE M MUNIVENKATAPPA,
AGED ABOUT 48 YEARS,
R/A KURUBARPET,
BHOVI COLONY,
KOLAR CITY-563101.
6. SRI MURALIDHARA
S/O LATE M MUNIVENKATAPPA
AGED ABOUT 47 YEARS
R/A KURUBARAPET
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RSA No. 1425 of 2019
BHOVI COLONY
KOLAR CITY-563101
7. VEENA
D/O LATE M MUNIVENKATAPPA,
AGED ABOUT 44 YEARS,
R/A KURUBARPET,
BHOVI COLONY,
KOLAR CITY-563101.
8. SRI K M MUNIYAPPA
S/O VENKATAPPA,
AGED ABOUT 77 YEARS,
R/A BENGALURU MADRAS ROAD,
NEAR BEML QUARTERS,
SANITORIUM POST,
KOLAR-563101.
...RESPONDENTS
THIS RSA IS FILED UNDER SEC.100 OF CPC., TO SET
ASIDE THE JUDGMENT AND DECREE PASSED BY THE HON
BLE III ADDL. SENIOR CIVIL JUDGE AT KOLAR IN R.A.
NO.68/2013, DATED 28-06-2018 AND ALSO THE JUDGMENT
AND DECREE PASSED BY THE IL ADDL. CIVIL JUDGE AND
J.M.F.C., KOLAR, IN O.S. NO.272/2007, DATED : 09-01-
2013 BY ALLOWING THIS APPEAL AND DISMISSING THE
SUIT AND ETC.,
THIS APPEAL, COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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RSA No. 1425 of 2019
JUDGMENT
This appeal is filed by the defendant No.2 aggrieved by
the judgment and decree dated 09.01.2013 passed in
O.S.No.272/2007 on the file of II Additional Civil Judge and
J.M.F.C, Kolar (hereinafter 'the Trial Court') and which is
confirmed by the judgment and order dated 28.06.2018 passed
in R.A.No.68/2013 on the file of III Additional Senior Judge,
Kolar (hereinafter 'the First Appellate Court').
2. The above suit is filed by the plaintiff seeking relief of
declaration and consequent relief of permanent injunction in
respect of Sy.No.64/2P-1 measuring to an extent of 1 acres
and 09 guntas, including 0.1 guntas of karab land situated at
Basavanatha Village, Kasaba Hobli, Kolar Taluk and District
(suit schedule property). It is the case of the plaintiff that he
purchased the suit schedule property from K.M.Munivenkatappa
@ Munivenkatappa-the defendant No.1 under the registered
deed of sale dated 10.09.1965. That ever since the date of
purchase, the plaintiff has been in possession and enjoyment of
the same as an absolute owner thereof.
2.1 That earlier the suit schedule property was standing
in Sy.No.64 measuring 4 acres and 39 guntas belonging to one
Gurappa @ Annaiahappa S/o Maliji Gurappa. An extent of 2
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acres and 19.50 guntas out of said 4 acres and 39 guntas was
purchased by Munishamappa @ Shillangere Munishama S/o
Shillangere Veeranna under the registered deed of sale dated
12.04.1943. Based on which the khata was mutated in his
name on 01.05.1961. The said property was divided between
the sons of Munishamappa @ Shillangere Munishama in terms
of registered deed of partition dated 01.05.1961. In which the
suit schedule property was allotted to the share of
Narayanappa S/o Munishamappa @ Shillangere Munishama.
2.2 That the said Narayanappa sold the suit schedule
property to the defendant No.1-K.M.Munivenkatappa @
Munivenkatappa S/o Munippanavara Venkatappa under the
registered deed of sale dated 04.05.1964. The defendant No.1-
K.M.Munivenkatappa in turn sold the suit schedule property in
favour of the plaintiff under registered deed of sale dated
10.09.1965.
2.3. That the said land in Sy.No.64 was phoded and
renumbered as Sy.Nos.64/1, 64/2P-1, 64/2P-2. The suit
schedule property was renumbered as Sy.Nos.64/2P-1 and
extent was restricted to 1 acre 9 guntas in which the plaintiff
has been in possession and enjoyment of the same.
2.4. It is further contended that, even after conveying the
property in favour of the plaintiff, defendant No.1 without
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having any right, title and interest over the suit schedule
property in collusion with defendant No.2 created illegal khata
in favour of defendant No.2. The plaintiff had preferred an
appeal in R.A.No.56/2007-08 before the Assistant
Commissioner and has obtained an Order of status-quo.
Despite the same, the defendants have been causing
interference with plaintiff's peaceful possession and enjoyment
of the suit schedule property. Hence, the suit.
3. Though defendant No.1 appeared through the counsel
did not contest the suit. Defendant No.2 appeared through the
counsel filed written statement contending that he purchased
the suit schedule property for valuable sale consideration from
defendant No.1 under the registered deed of sale dated
09.03.2007 as such he has been in possession and enjoyment
of the suit schedule property as the absolute owner thereof.
4. It is further contended that the plaintiff have given
wrong boundaries to the suit schedule property that neither the
father of the plaintiffs nor the plaintiffs were in possession of
the suit schedule property for a period of 12 years prior to filing
of the suit. It is also contended that the defendant No.2 and
his vendor have been in continuous possession and enjoyment
of the suit schedule property, hostile to the interest of the
plaintiff for over 12 years, have perfected their title to the suit
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schedule property, by way of adverse possession. Hence,
sought for dismissal of the suit.
5. Based on the pleadings, the Trial Court framed the
following issues for its consideration:
"1. Whether the plaintiffs prove that they are the
absolute owners of the suit schedule property as
claimed by them?
2. Whether the plaintiffs prove they have been in
possession and enjoyment of the suit schedule
property as on the date of filing of suit?
3. Whether the plaintiffs prove the alleged
interference of the defendants?
4. Whether the plaintiffs are entitled for the reliefs
sought for?
5. What order or decree?"
6. The plaintiff examined herself as PW1 and exhibited 25
documents marked as Ex.P1 to Ex.P25 and also examined three
additional witnesses marked as PW.2 to PW.3. In order to
prove their defence, defendant No.2 examined himself as DW1.
two additional witnesses have been examined in favour of the
defendant as DW.2 and DW.3 and exhibited 3 documents
marked as Ex.D1 to Ex.D3. On appreciation of the evidence
the Trial Court answered issue Nos.1 to 4 in the affirmative and
consequently decreed the suit.
7. Being aggrieved by the aforesaid judgment and decree
defendant No.2 filed an appeal in R.A.No.68/2013 before the
First Appellate Court. Considering the grounds urged the First
Appellate Court framed the following points for its
consideration:
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"1. Whether the Appellant proves the alleged
interference as set out in the appeal
memorandum ?
2. Whether the judgment and decree passed by
the trial Court is capricious, perverse and
illegal?
3. Whether the judgment and decree of the trial
Court needs interference?
4. To what relief and decree the parties are
entitled for?"
8. On re-appreciation of the evidences, the First
Appellate Court answered point Nos.1 to 3 in the negative and
consequently dismissed the appeal confirming the judgment
and decree passed by the Trial Court.
9. Being aggrieved by the same defendant No.2 filed the
present appeal.
10. Sri.V. Visweswaraiah, learned counsel for the
appellant reiterating the grounds urged in the memorandum of
the appeal submits that though the defendant No.1 had sold
the suit schedule property to the plaintiff in terms of registered
deed of sale dated 10.09.1965, possession of the same had not
been delivered and the possession was retained by the
defendant No.1 with himself. He submits that the sale was
incomplete as the possession was retained by the defendant
No.1 who was in un-interrupted possession over the years and
thereafter conveyed the suit schedule property in favour of
defendant No.2 in terms of deed of sale dated 09.03.2007. He
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submits that the revenue records were standing in the name of
defendant No.1 based on which defendant No.2 purchased the
said suit schedule property for a valuable consideration. He
also submits that after the purchase defendant No.2 continued
to occupy the suit schedule property openly and to the
knowledge of the plaintiffs and the plaintiffs not having taken
any action within the time stipulated under law could not have
maintained the suit. He submits that these aspects of the
matter have not been taken into consideration by the Trial
Court and the First Appellate Court giving raise to substantial
question of law.
11. Heard. Perused the records.
12. There is no dispute of the fact that the suit schedule
property belonged to defendant No.1. There is also no dispute
of the fact that defendant No.1 had sold the suit schedule
property in terms of registered deed of sale dated 10.09.1965
as per Ex.P4 in favour of the plaintiff. The only contention
urged on behalf of the appellant is that defendant No.1 having
sold the property had retained the possession and there was no
resistance or objection by the plaintiff regarding the same.
Based on the un-interrupted possession defendant No.2
purchased the property in terms of registered deed of sale
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dated 09.03.2007. Thus he submits that defendants had
produced cogent evidence before the Trial Court with regard to
the plaintiff not being in the possession of the suit schedule
property, which factor has not been taken note-of by the Trial
Court and the First Appellate Court.
14. It is relevant at this juncture to refer to the analysis
made by the Trial Court at para Nos.32 and 33 of the impugned
judgment and decree. The Trial Court has taken note of the
fact that after the purchase of the property by the plaintiff in
terms of registered deed of sale dated 10.09.1965. The name
of the plaintiff has been reflected in the revenue records, the
plaintiff has produced RTC extracts for the year 1965-66 to
1972-73. It appears from the year 1973-74 to 1983-84 name
of defendant No.1 has been reflected in column No.2 of the RTC
extracts. Referring to the said documents the Trial Court has
come to the conclusion that merely because the name of
defendant No.1 - K.M.Munivenkatappa @ Munivenkatappa
surfaced between the year 1973-74 to 1983-84 it cannot be
said that he has been in the possession of the property, even
after conveying the same in favour of the plaintiff. The Trial
Court has also taken note of the proceedings initiated by the
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plaintiff before the revenue authorities questioning the entries
made in favour of defendant No.2.
15. In view of the aforesaid material evidence available on
record the contention being urged on behalf of the appellants
that no possession was handed over to the plaintiff, after the
sale cannot be countenanced. Also for the reason that as per
Ex.P15 to Ex.P20, name of the plaintiff was reflected in the
revenue records for the years 1965-66 to 1972-73. If there are
any stray entries in between, as rightly observed by the Trial
Court and the First Appellate Court, such entries in the revenue
records will not impeach the title and possession of the plaintiff,
who has admittedly purchased the suit schedule properties
from Defendant No.1. Defendant No.1 having conveyed his
right, title, interest and possession of the property as noted
above in favour of the plaintiff had nothing to convey further in
favour defendant No.2.
16. A feeble attempt is made to put forth the case of
adverse possession. Without pleading and proof of
requirements of plea of adverse possession the same deserves
to be rejected as rightly done before the Trial Court and the
First Appellate Court. In that view of the matter, the
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reasoning, finding and conclusion arrived at by the Trial Court
confirming by the First Appellate Court cannot be found fault
with. No substantial question of law would arise for
consideration in this appeal.
17. Accordingly, this appeal is dismissed confirming the
judgment and decree passed by the Trial Court and the First
Appellate Court.
Sd/-
JUDGE
RL
