Karnataka High Court
Smt.Gangamma D/O Hanumavva vs B Padmaraj S/O Rajanna on 12 February, 2024
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
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NC: 2024:KHC-D:3079
RFA No. 100080 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 12TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
REGULAR FIRST APPEAL NO. 100080 OF 2021 (DEC)
BETWEEN:
SMT.GANGAMMA D/O HANUMAVVA
AGE 54 YEARS, OCC HOUSEHOLD WORK,
R/O 10TH WARD, ANJANEYA BADAVANE,
HARAPANAHALLI, TQ HARAPANAHALLI,
DIST DAVANAGERE-583131.
...APPELLANT
(BY SRI LAXMAN T MANTAGANI, ADVOCATE.)
AND:
1. B PADMARAJ S/O RAJANNA
AGE 49 YEARS, OCC BUSINESS,
R/O BANGARAPETE,
HARAPANAHALLI TOWN,
DIST DAVANAGERE-583131.
SUJATA
SUBHASH 2. REVANNASIDDAPPA S/O GANGAMMA
PAMMAR AGE 30 YEARS, OCC AGRICULTURE,
R/O 10TH WARD, ANJANEYA BADAVANE,
HARAPANAHALLI, TQ HARAPANHALLI,
DIST DAVANAGERE-583131.
...RESPONDENTS
(BY MISS SHIVALEELA ARAHUNASI FOR SRI. ARAVIND D.
KULKARNI, ADVOCATE FOR R1;
R2 - NOTICE SERVED.)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 OF THE CODE OF CIVIL PROCEDURE, 1908, PRAYING TO
SET ASIDE THE JUDGMENT AND DECREE DATED 21.01.2021,
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RFA No. 100080 of 2021
PASSED BY THE COURT OF THE SENIOR CIVIL JUDGE AND
JMFC, HARAPANAHALLI, IN O.S.NO.122/2017 BY ALLOWING
THIS REGULAR FIRST APPEAL WITH COSTS, IN THE INTERST
OF JUSTICE AND EQUITY, AND ETC.,.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Plaintiff No.1 is currently in appeal and they initiated a
suit in O.S.No.122/2017 for declaration that they are the
absolute owners in possession of the suit schedule properties
and consequential relief of permanent injunction restraining the
defendants from interfering with their peaceful possession over
the suit schedule properties.
2. The plaint averments in brief, are as follows:
Plaintiff No.1 is the absolute owner of the suit schedule
property measuring 40' x 60', and out of the said extent an
extent of 20' x 60' was conveyed in favour of plaintiff No.2
through a registered gift deed dated 02.05.2009 and since
there was a mistake, rectification deed was executed on
29.05.2017 describing the boundaries correctly. The defendants
having no manner of right, title over the suit schedule
properties, and by creating document are claiming right over
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the suit schedule properties and are interfering with their
peaceful possession.
3. The defendants entered appearance, and filed
written statement stating that, one Nagaraj executed a
registered sale deed dated 20.4.1964 in favor of one B
Hombappa, and after his death, his legal representatives
executed a registered sale deed in favor of defendant through a
registered sale deed dated 17.8.2016. The boundaries shown
by the plaintiffs to the property as 40/871 is the boundaries of
the defendant property, that is 40/872. The plaintiffs created
documents to fraudulently to grab the suit schedule property
belonging to the defendant. The Trial Court, on the basis of
pleadings of the parties, framed the following:
ISSUES
1. Whether plaintiffs prove that they are the
absolute owner of the suit schedule properties?
2. Whether plaintiff No.1 proves that he has
executed gift deed in respect of suit properties
to the extent of 20x60 feet in favour of plaintiff
No.2?
3. Whether plaintiff have prove the alleged
interference by the defendants over the peaceful
possession and enjoyment of plaintiffs over suit
properties?
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4. Whether defendants prove that plaintiff have
show wrong boundaries to Sy.No.40/871/40
which is boundary of his properties?
5. Whether defendants proves that plaintiff have
created fake documents in respect of suit
properties?
6. Whether plaintiffs are entitled for the relief as
sought for in the plaint?
7. What order or decree?
4. The plaintiffs to prove their case examined PWs.1
to 4, and marked the documents at Exs.P1 to P37, and the
defendant to prove his case examined as DW1 and DW2, and
marked the documents as Exs.D1 to D30.
5. The Trial Court, after appreciating the evidence on
record, held that the plaintiffs have failed to prove that, they
are the owners of the suit schedule properties and dismissed
the suit.
6. The learned counsel for the appellant submits that
the document at Ex.P1, and the corresponding entries in the
revenue records, and khata extracts clearly establish that, the
plaintiffs are the owners of the suit schedule properties, and
the Trial Court, ignoring the said documentary evidence, has
committed an error in dismissing the suit. Therefore, sought for
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setting aside the impugned judgment and decree passed by the
Trial Court.
7. Per contra, the learned counsel for respondents
submits that, in the absence of source of title, the Trial Court
has rightly held that, the gift deed executed by the plaintiff
No.1 in favor of plaintiff No.2 does not establish that, the
plaintiffs are the owners of the suit schedule property, and the
findings recorded by the Trial Court is based on oral and
documentary evidence, and in the absence of any arbitrariness
or perversity, the impugned judgment and decree passed of the
Trial Court does not warrant any interference.
8. Considered the submissions made by the learned
counsel for the parties and perused the Trial Court records.
9. The plaintiffs to establish the case have produced
exhibits in all 37 documents, and Ex.P1 is the registered gift
deed executed by the plaintiff No.1 in favor of plaintiff No.2
conveying an extent of 20x60ft. in the suit schedule property in
favor of plaintiff No.2. However, the plaintiffs have not
produced any documents, both oral and documentary to
substantiate with regard to the source of title of the plaintiff
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No.1 in conveying an extent of 20x60ft in favor of plaintiff
No.2. PW2 in his cross-examination has stated that, there was
a partition effected between his family members consisting of
plaintiff No.1, and the subject property also formed part of
partition, and the suit schedule property was allotted to his
share, however, categorically admitted that, he does not know
the source of title, by which, the plaintiff No.1 acquired right
over the suit schedule property.
10. PW3 is the scribe of Ex.P1. In his cross-
examination, he has categorically stated that, he has not seen
the source of title or any documentary evidence to substantiate
that, the suit schedule property was standing in the name of
plaintiff No.1, and the similar admission is made by PW4, who
is the attesting witness to Ex.P1.
11. The documents produced by the plaintiffs indicated
that, initially the property belonged to one Nagaraj, who had
mortgaged the suit schedule property on 5.7.1963 to
Hombamma for Rs.800/-, and on 20.4.1964, Nagaraj executed
a registered sale deed in respect of the suit schedule property
in favor of B.Hombappa. B.Hombappa died leaving behind the
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vendors of the defendant as his legal representatives, and in
the capacity of legal representatives of the deceased B
Humbappa, they executed a registered sale deed in favor of the
defendant on 17.8.2016 conveying the suit schedule property
in favor of his favour for a sale consideration of Rs.2,50,000/-.
The encumbrance certificate for the period 1960 to 1970 would
clearly establish that one Nagaraj was the owner, and he in
turn executed a sale deed in favour of B.Hombappa. The
documents produced by the defendant clearly establishes the
source of title of the vendors of the defendant in conveying the
suit schedule property. The plaintiffs have not produced any
documents to substantiate that, the plaintiff No.1 had any
right, title over the property in conveying an extent of 20x60ft
in favor of plaintiff No.2, and the said gift deed does not
establish that, they are the owners of the suit schedule
properties. The Trial Court, taking into consideration the oral
and documentary evidence in a proper perspective, has rightly
dismissed the suit. Therefore, I do not find any illegality in the
impugned judgment and decree passed by the Trial Court.
Accordingly, I pass the following:
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ORDER
The appeal is dismissed.
Sd/-
JUDGE
MRK-para 1
BKM-para 2 to end.
CT:ANB
