Karnataka High Court

Smt Sumithramma vs Sri Y V Venkatarama on 1 February, 2024

Author: M.G.S. Kamal

Bench: M.G.S. Kamal

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                                                         NC: 2024:KHC:4385
                                                        RSA No. 42 of 2018




                     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. 42 OF 2018 (DEC)
                BETWEEN:

                1.     SMT SUMITHRAMMA
                       WIFE OF LATE V. GANGADHARAMURTHY,
                       AGED 70 YEARS,
                       SINCE DECEASED BY LRs.,

                1(a) SMT. G.RAJALAKSHMI,
                     AGED ABOUT 70 YEARS,
                     WIFE OF H.N.JAYASIMHA MURTHY,
                     DAUGHTER OF LATE V.GANGADHARAMURTHY
                     & LATE SMT.SUMITHRAMMA,
                     RESIDING AT No.358, 4TH CROSS,
                     VIDYAMANYA NAGAR,
                     ANDRAHALLI HOBLI,
                     BENGALURU-560 091.

                1(b) SMT.G.MANJULA,
Digitally            AGED ABOUT 60 YEARS,
signed by
SUMA B N             WIFE OF B.S.GOVINDARAJU,
Location:            DAUGHTER OF LATE V.GANGADHARAMURTHY,
High Court of        & LATE SMT.SUMITHRAMMA,
Karnataka
                     R/AT No.9, 11TH BLOCK,
                     ADISHAKTHI ROAD, SHAKTHI NAGAR,
                     MYSURU-570 029.
                                                      ...APPELLANTS
                (BY SRI. M.KRISHNA KUMAR, ADVOCATE)

                AND:

                1.    SRI Y V VENKATARAMA
                      SON OF LATE V. VENKATACHALAIAH,
                      AGED 50 YEARS,
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                                       NC: 2024:KHC:4385
                                      RSA No. 42 of 2018




     RESIDING AT PWD QUARTERS,
     HULLAHALLI POST,
     NANJANGUD TALUK,
     MYSURU DISTRICT, PIN:571314.

2.   SMT. NAGARATHNAMMA
     WIFE OF LATE V.Y.PURNACHANDRA,
     AGED 65 YEARS,
     RESIDING AT NO.1063/15,
     1ST MAIN ROAD, 3RD CROSS,
     VIDYARANYAPURAM,
     MYSURU, PIN:570008.

3.   SRI. J.PUTTASWAMY
     SON OF LATE JAVARAPPA,
     AGED ABOUT 69 YEARS,
     RESIDING AT NO.17/1,
     E & F BLOCK,
     RAMAKRISHNA NAGARA,
     CHAMARAJA MOHALLA,
     MYSURU, PIN:570024.
                                         ...RESPONDENTS

(BY SRI. SANGAMESH.R.B., ADVOCATE FOR R-3)


      THIS APPEAL IS FILED UNDER SECTION 100 READ WITH
ORDER 43 RULES 1 AND 2 OF CPC, AGAINST THE JUDGMENT
AND DECREE DATED:20.09.2017 PASSED IN R.A.No.98/2016
ON THE FILE OF THE II ADDITIONAL DISTRICT JUDGE,
MYSURU, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT    AND   DECREE   DATED:10.04.2015   PASSED   IN
O.S.No.262/2007 ON THE FILE OF THE II CIVIL JUDGE AND
JMGC., MYSURU, ETC.


      THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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                                              NC: 2024:KHC:4385
                                           RSA No. 42 of 2018




                         JUDGMENT

1. The unsuccessful plaintiff, since deceased,

represented by her daughters, who are legal

representatives are before this Court aggrieved by the

judgment and decree dated 10.04.2015 passed in O.S.

No.262/2007 on the file of II Civil Judge & JMFC, Mysuru

(Trial Court) which is confirmed by the judgment and

order dated 20.09.2017 passed in R.A. No.98/2016 on the

file of II Additional District Judge at Mysuru (First

Appellate Court).

2. The above suit in O.S. No.262/2007 filed by plaintiff

for relief of declaration and possession of the property

bearing Sy. No.10/1 measuring 30 guntas situate at

Yedahalli village, Rayanakere Hobli, Mysuru Taluk,

contending inter alia that the said property was originally

allotted to the share of husband of plaintiff by name

Gangadhara Murthy in terms of partition deed dated

15.05.1940 and he was in possession of the said property

till his demise on 01.07.2004. As the plaintiff could not

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live on her own and her daughters were in their

matrimonial home, she had requested defendants to

support her by cultivating the suit schedule property on

the basis of crop share. That on 05.04.2007 some

stranger asked the plaintiff regarding her objections, if

any, with regard to the ownership over the schedule

property and on questioning the defendants did not give

favourable response to the plaintiff and when plaintiff

asked for possession of suit schedule property, defendants

denied her title constraining her to file a suit for

declaration and possession.

3. Defendants in their written statement though

admitted the plaintiff to be wife of one Gangadhara

Murthy, but denied the rest of the plaint averments. It is

contended that Sy.No.10 originally measured 4 acres 35

guntas, of which 4 acres 5 guntas was sold by the

husband of the plaintiff on two different occasions, under

two different deeds of sale in favour of the third parties,

who are in possession and enjoyment of the same that the

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father of defendant No.1 by name Venkatachalaiah, who is

the father-in-law of defendant No.2 was holding remaining

30 guntas of land in the said Sy.No.10 as a tenant. That

on an application he was granted occupancy rights by the

Land Tribunal, Mysuru, vide order No.KLRM/1940/1974-75

and he was in possession, cultivation and enjoyment of

the property during his life time and after his demise in

the year 1979, his two sons i.e., defendant No.1

Venkataramu and husband of defendant No.2 by name

Y.V. Poornachandra enjoyed the said property. After the

confirmation of occupancy rights in respect of said 30

guntas of land Sy.No.10/1 was assigned to the said

portion of land. Y.V.Poornachandra passed away in the

year 2002 and thereafter along with defendant No.7, the

name of defendant No.2 was also inserted in the revenue

records. Thus, they have been in possession and

enjoyment of the suit property and hence, sought for

dismissal of the suit.

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4. Based on the above pleadings, the Trial Court framed

the following issues for its consideration :

i. Whether the plaintiff proves that the suit schedule property fell to her husband V.Gangadhara Murthy's share through partition dated 15.05.1940 and that she succeed to the same after his death on 01.07.2004?

ii. Whether the plaintiff proves that she has been in possession and cultivation of the said property?

iii. Whether the plaintiff proves alleged interference by the defendants?

iv. Whether the defendants prove that the plaintiff's husband sold 4 acres 5 guntas of land in Sy.No.10 of Yadahalli under two different sale deeds?

v. Whether the defendants prove that the father of 1st defendant has held remaining 30 guntas of land in Sy.No.10 of Yedahalli as a tenant and occupancy of right was confirmed on him by the Land Tribunal, Mysuru?

vi. Whether the defendants prove that this suit without seeking the possession of the suit schedule property is not maintainable?

NC: 2024:KHC:4385

vii. Whether the plaintiff is entitled for the relief of declaration and permanent injunction as prayed?

viii. What order or decree?

5. Plaintiff examined herself as P.W.1 and another

witness one Mahadevappa was examined as P.W.2 and

exhibited 5 documents and marked as Exs.P-1 to P-5.

Defendant No.1 examined himself as D.W.1 and exhibited

18 documents and marked as Exs.D-1 to D-18.

6. On appreciation of pleadings, oral and documentary

evidence, the Trial Court answered issues No.1 to 3 and 7

in the negative and issues No.4 and 5 in the affirmative.

Consequently, dismissed the suit of the plaintiff.

7. Being aggrieved by the same, plaintiff preferred

Regular Appeal in R.A. No.98/2016 before the First

Appellate Court. Considering the grounds urged in the

making of appeal, the First Appellate Court framed the

following points for consideration :

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i. Whether the lower Court was justified in answering issue No.1 in negative and issue No.5 in affirmative?

        ii.      What order?

8.   On       re-appreciation   of     the    evidence,   the   First

Appellate Court dismissed the appeal conferring the

judgment passed by the Trial Court. Aggrieved by the

same, appellant is before this Court.

9. Learned counsel for the appellant reiterated the

grounds urged in the Memorandum of appeal, submitted

that the Trial Court and First Appellate Court have failed to

appreciate the evidence produced by the plaintiff with

regard to her possession and enjoyment of the property,

after demise of her husband. It is his further contention

that the Trial Court and First Appellate Court have failed to

appreciate that the said property had fallen to the share of

the husband of plaintiff in terms of partition deed dated

15.04.1940 and the same was succeeded by the plaintiff

upon the demise of her husband during the year 2004. He

submits that non-appreciation of evidence by the Trial

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Court and First Appellate Court gives rise to substantial

questions of law requiring consideration at the hands of

this Court.

10. Learned counsel for the respondents, on the other

hand, drawing attention of this Court to the reasoning

assigned by the Trial Court with regard to the contentions

of the defendants or their father acquiring the property in

terms of grant made by the Land Tribunal in the year 1982

submit that the said grant has not been challenged by the

plaintiff. He also points out to the deposition of plaintiff,

wherein she has admitted that between the year 1974 to

2007 neither the plaintiff nor her husband was in

possession of the property. He submits that the Trial

Court and First Appellate Court have taken note of the

undisputed fact and have arrived at a just and proper

conclusion warranting no interference and dismissed with

costs.