Karnataka High Court
Prakash Harne vs Smt Kousalyabai on 12 February, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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RSA No. 527 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 527 OF 2023 (DEC/POS)
BETWEEN:
1. PRAKASH HARNE
S/O CHANDROJIRAO,
AGED ABOUT 49 YEARS,
OCC -COOLIE,
R/AT MARATHA BEEDI HARIHARA TOWN,
DAVANAGERE DISTRICT-577201.
2. NAGARAJA HARNE
S/O CHANDROJIRAO,
AGED ABOUT 47 YEARS,
R/AT MARATHA BEEDI HARIHARA TOWN,
DAVANAGERE DISTRICT-577201.
...APPELLANTS
Digitally signed
by SUMA B N (BY SRI. HIREMATHAD MAHESHIAH RUDRAYYA.,ADVOCATE)
Location: High
Court of
Karnataka AND:
1. SMT KOUSALYABAI
W/O LATE YASHWANTRAO HARNE
AGED ABOUT 73 YEARS,
R/AT HALE HARLAPURA
...RESPONDENT
(BY SRI. HALLI SHANTAPPA BASAPPA., ADVOCATE)
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RSA No. 527 of 2023
RSA FILED UNDER SECTION 100 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 18.10.2022 PASSED IN
R.A.No.07/2020 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND JMFC, HARIHAR, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 30.11.2009
PASSED IN OS No.123/2013 ON THE FILE OF THE PRINCIPAL
CIVIL JUDGE AND JMFC, HARIHARA.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is by the legal heirs of original defendant,
aggrieved by the judgment and decree dated 30.11.2019
passed in O.S.No.123/2013 by the Principal Civil Judge
and JMFC, Harihara (for short "the trial Court") which is
confirmed by judgment and order dated 18.10.2022 in
R.A.No.07/2020 on the file of Senior Civil Judge and JMFC,
Harihara (for short "the First Appellate Court").
2. The above suit in O.S.No.123/13 filed by the
plaintiff for relief of declaration of her title in respect of the
plaint schedule property and for a direction to the
defendants to vacate and deliver the vacant possession of
the property to the plaintiff. The plaintiff contended that
the suit schedule property was originally purchased by the
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plaintiff's husband under the registered deed of sale dated
18.11.1981 from the defendant and other family
members. Thereafter, after execution of the sale deed,
her husband Late Yashwantha Rao Harne was exercising
his ownership and possession over the plaint schedule
property with all the revenue records having been
transferred in his name. The schedule property had been
let out to a tenant for a period of 3 years who in turn had
sub-let the property to another tenant. Thereafter the
said tenant vacated and handed over the vacant
possession of the property to the husband of the plaintiff.
Husband of the plaintiff Sri.Yashwanth Rao passed away
on 26.03.2002. Subsequent to demise of Yashwanth Rao,
the revenue records were mutated in the name of plaintiff,
she being the legal heir of the said Yashwanth Rao. It is
the contention of the plaintiff that the schedule property is
constructed of mud and it was in dilapidated condition in
the year 2008 and was lying vacant. The defendant being
relative and also one of the Vendors of the schedule
property had approached the plaintiff requesting her to
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give permission to stay in the said house, assuring that he
would have the schedule property repaired and would stay
in the said property till he obtains a house in Ashraya
Colony. Considering the relationship and request of the
defendant, the plaintiff permitted the defendant to stay in
the plaint schedule property. When the plaintiff
approached the defendant to vacate and handover the
schedule property after three months of his occupancy,
the defendant requested to extend the permission to
occupy the property for a period of one year, to which the
plaintiff agreed. That after completion of one year, the
defendant never vacated the schedule property, but
agreed to pay Rs.800/- p.m., as rent. The defendant did
not keep up the promise of paying the said rental. A
panchayat was held with the help of the locals, but the
defendant did not vacate the house, which constrained the
plaintiff to issue notice on 23.03.2013. Despite receipt of
the same, the defendant refused the request of the
plaintiff to vacate the premises which constrained the
plaintiff to approach the Court for the relief as sought for.
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3. The original defendant died during the
pendency of the suit. His sons were brought on record as
defendant No.1(a) and 1(b). In the written statement
filed by the defendants, it is specifically contended that the
suit schedule property is ancestral joint family property of
the defendant and also of the husband of the plaintiff and
other co-parceners. One Nagoji Rao was the propositus of
the joint family of the plaintiff and defendants who had
four sons by name, Haloji Rao, Hanumantha Rao, Bhima
Rao and Shivaji Rao who are no more. Hanumantha Rao
died leaving behind Krishnoji Rao, Nagaraj Rao and Vittal
Rao as his legal representatives. The said Krishnoji Rao
died unmarried. Vittal Rao died leaving behind his wife
Lalitha Bai and sons Laxman, Vasu and Raghavendra. The
son Vasu is no more. Shivaji Rao died leaving behind
Yashwanth Rao i.e., husband of the plaintiff, Shambhoji
Rao, Ammu Rao, Ananda Rao, Nagaraj as his legal
representatives. There is no partition and separate
possession of the schedule property. The original
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defendant along with his sons is in peaceful possession
and enjoyment of the schedule property for over 50 - 60
years without any interference. That the husband of the
plaintiff was in dominant position as he was working in
Birla Company at Kumarapattanum. The defendants and
other family members were illiterates, as such, the said
Yashwanth Rao got the bogus documents prepared in
order grabbing the suit schedule property. The said
document was never signed by any persons much less,
Lalitha Bai, Hanumanth Rao, Nagoji Rao. There was no
execution of sale deed as contended by the plaintiff.
Neither the plaintiff nor her husband were the owners of
the suit schedule property and the defendants had
perfected their right, title and interest over the suit
schedule property by adverse possession. There was a
suit in O.S.No.66/1996 filed by one Revanasiddappa, a
neighbouring owner against the defendants, as they were
constructing a new house over the suit schedule property.
Thus, sought for dismissal of the suit.
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4. Based on the pleadings, the trial Court framed
the following issues for its consideration:
1. Whether the plaintiff proves that she is the absolute
owner and enjoyment of the suit schedule property?
2. Whether the plaintiff proves that the defendant is in
permissive possession of the suit schedule property?
3. Whether the plaintiff is entitle for relief of declaration
of title?
4. Whether the plaintiff is entitle for delivery of
possession of suit schedule property?
5. Whether the plaintiff is entitle for any mesne profits?
6. What order or decree?
ADDITIONAL ISSUE NO.1
Whether the defendant No.1(a) and 1(b) proves
that this Court has no pecuniary jurisdiction to try
this suit?
5. Evidence was recorded and on appreciation of
the evidence, the trial Court answered additional issue and
issue No.2 in the negative and issue Nos.1, 3, 4 and 5 in
the affirmative and consequently, decreed the suit with
cost, declaring the plaintiff as absolute owner of the plaint
schedule property and directed the defendants to vacate
and handover possession of the property. Aggrieved by
the same, the defendants preferred R.A.No.07/2020
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before the First Appellate Court. The First Appellate Court
considering the grounds urged therein framed the
following points for its consideration:
CA±À-1. «ZÁgÀuÁ £ÁåAiÀiÁ®AiÀĪÀÅ ¢£ÁAPÀ 30.11.2019 gÀAzÀÄ ªÀÄÆ®
zÁªÁ £ÀA.123/2013 gÀ°è ¤ÃrgÀĪÀAvÀºÀ wÃ¥ÀÄð ªÀÄvÀÄÛ rQæ
PÁ£ÀÆ£ÀħzÀÞªÁV®è J£ÀÄߪÀÅzÀ£ÀÄß ªÉÄîä£À«zÁgÀgÄÀ ¸Á©üÃvÀÄ¥Àr¹zÁÝgÉAiÉÄÃ?
CA±À-2. «ZÁgÀuÁ £ÁåAiÀiÁ®AiÀĪÀÅ ªÁ¢AiÀÄÄ PÁ®¥Àj«Äw «ÄÃj zÁªÁ
¸À°è¹zÁÝgÉ ªÀÄvÀÄÛ ¥ÀæwªÁ¢AiÀÄÄ 12 ªÀµÀðUÀ½UÉ ªÉÄîàlÄÖ zÁªÁ D¹ÛAiÀÄ°è
¥ÀæwPÀÆ® ¸Áé¢üãÁ£ÀĨsÀªÀzÀ°èzÁÝgÉAzÀÄ ¤tð¬Ä¸ÀĪÀ°è «¥sÀ®ªÁVzÉ JAzÀÄ
ªÉÄîä£À«zÁgÀgÀÄ ¸Á©üÃvÀÄ¥Àr¹zÁÝgÉAiÉÄÃ?
CA±À-3. AiÀiÁªÀ DzÉñÀ?
6. On re-appreciation of the evidence, the First
Appellate Court answered the points framed for
consideration in the negative and consequently dismissed
the appeal confirming the judgment and decree passed by
the trial Court.
7. Learned counsel for the appellant submitted that
the Trial Court and first appellate court grossly erred in
decreeing the suit for possession in the absence of plaintiff
proving her case of defendant being in permissive
possession of the suit schedule property. That trial Court
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and first appellate Court ought to have appreciated the
long and undisturbed possession of the defendant over 50
to 60 years. That trial Court and first appellate Court
failed to appreciate Ex D1 to D48 proof of long residence
of the defendants in suit schedule property, as such the
suit of the plaintiff was barred by law.
8. Heard and perused the records.
9. There is no dispute of the fact that deed of sale
dated 18.11.1981 had been executed in favour of husband
of the plaintiff by the father of the defendant and other
members of the family. The said deed of sale has
remained unchallenged till date. Pursuant to the said deed
of sale, revenue records have been mutated in the name
of Yashwanth Rao. Upon his demise in the year 2002, the
revenue records have been mutated in the name of the
plaintiff. The suit schedule properties had been leased out
to tenants during the life time of Yashwanth Rao. The
plaintiff has produced the sale deed and revenue records
and also tax paid receipts as taken note of by the trial
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Court and First Appellate Court. On the other hand, the
defendants who claimed that sale deed was fabricated and
that the suit schedule property being joint family property
has been in their possession and enjoyment and that there
was no partition of the same, has not produced any
acceptable evidence.
10. The other contentions raised by the defendants is
that they have perfected their title over the schedule
property by adverse possession. However, as taken note
of by the trial Court and First Appellate Court, there is no
plea made by the defendants containing the ingredients of
adverse possession. The defendants have neither pleaded
nor proved the date from which, their possession became
adverse and hostile to the possession and title of the
plaintiff. In the absence of such a plea and proof of the
same, the plea of adverse possession could not be
entertained. On the other hand case of the defendant is
that property continued to be the joint family property.
Production of Ex.D1 to D48 by the defendants regarding
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long duration of residence alone is not sufficient to non-
suit the plaintiff and to confer the rights and title in favour
of the defendants. The trial Court and First Appellate
Court having adverted to the facts of the case and
applicable provisions of law, in the opinion have come to a
just conclusion in decreeing the suit as sought for, no
substantial questions of law would arise for consideration,
as such, the appeal is dismissed.
In view of dismissal of the appeal, the pending I.A.
does not survive for consideration. Accordingly, the same
is rejected.
Sd/-
JUDGE
MPK
