Karnataka High Court
Sri. Nanje Gowda vs Sri Mayanna Gowda on 14 February, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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RSA No. 1376 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 1376 OF 2023 (DEC/INJ)
BETWEEN:
SRI. NANJE GOWDA
AGED ABOUT 71 YEARS
S/O LATE KARI GOWDA
AGRICULTURIST RESIDENT OF
KODINAGANAHALLI VILLAGE
KOPPA HOBLI-571422
MADDUR TALUK
MANDYA DISTRICT.
...APPELLANT
(BY SRI. SHASHI KUMAR G V.,ADVOCATE)
AND:
Digitally SRI MAYANNA GOWDA
signed by AGED ABOUT 72 YEARS
SUMA B N
S/O LATE CHIKKALINGAIAH
Location: High
Court of AGRICULTURIST RESIDENT OF
Karnataka KODINAGANAHALLI VILLAGE
KOPPA HOBLI,-571422
MADDUR TALUK
MANDYA DISTRICT.
...RESPONDENT
(BY SRI. B RAMESH.,ADVOCATE)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGEMENT AND DECREE DATED 19.04.2021 PASSED IN
RA NO.101/2019 ON THE FILE OF SENIOR CIVIL JUDGE,
MADDUR., ALLOWING THE APPEAL AND SETTING ASIDE THE
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RSA No. 1376 of 2023
JUDGMENT AND DECREE DATED 15.03.2019 PASSED IN OS
NO.53/2018 ON THE FILE OF II ADDITIONAL CIVIL JUDGE AND
JMFC, MADDUR.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Though the matter is listed for admission, by consent
of the learned counsel for the parties, matter is taken up
for final disposal.
2. This appeal is by the defendant/appellant being
aggrieved by the judgment and order dated 19.04.2021
passed by the Senior Civil Judge, Maddur (hereinafter
referred to as 'First Appellate Court' for short) while
allowing the appeal had set aside the judgment and decree
passed in O.S.No.53/2018 dated 15.03.2019 on the file of
II Additional Civil Judge & JMFC, Maddur (hereinafter
referred to as 'Trial Court' for short) which was filed
against the appellant herein seeking following reliefs;
"(a) For declaration, declaring that the
plaintiff is the absolute owner in
possession and enjoyment of the schedule
property as absolute owner there of in
Sy.No.134 instead of Sy.No.133/2A.
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(b) Consequential relief directing the
defendant to execute Rectification of deed
rectifying the mistake crept in respect of
Survey Number of the suit schedule
property in the sale deed dated
15.08.1978 executed by the deceased
father of the defendant in favour of the
father of the plaintiff.
(c) Consequential relief of permanent
injunction restraining the defendant or his
successors or labours or servants or
agents or anybody acting on his behalf
from interfering with the peaceful
possession and enjoyment of the suit
schedule property by the plaintiff."
3. Subject matter of the suit is land measuring 4
guntas bearing Sy.No.133/2A (Correct Sy.No.134) situated
at Kowdle Village, Koppa Hobli, Maddur Taluk. Case of the
plaintiff is that his father purchased the Sy.No.133/2A
measuring 4 guntas of land from the father of the
defendant in terms of deed of sale dated 15.08.1978. That
at the time of preparation of a survey sketch it was
noticed that plaintiff is in possession of Sy.No.134 and not
in Sy.No.133/2A. That upon the demise of the father of
the defendant name of the defendant was mutated in the
revenue records in respect of Sy.No.134. Being aggrieved
by the same, plaintiff initiated the proceedings before the
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Assistant Commissioner who by his order dated
24.04.2017 in R.Mis.No.246/2014 found that the land
conveyed in terms of deed of sale dated 15.08.1978 was
indeed in Sy.No.134 and not in Sy.No.133/2A. Based on
the same the plaintiff filed a suit in O.S.No.53/2018
seeking aforesaid reliefs.
4. Though the defendant had appeared through
his counsel had neither filed written statement nor
contested the suit. The Trial Court after recording the
evidence of the plaintiff and another witness as PW.1 and
PW.2 and on consideration of three documents produced
at Exs.P1 to P3 found that plaintiff had not produced
evidence sufficient enough to justify his claim of property
in Sy.No.134 was the one which was conveyed in his
favour and not the one in Sy.No.133/2A and consequently
dismissed the suit. Being aggrieved by the same, plaintiff
preferred regular appeal in R.A.No.101/2019 along with an
application under order 41 Rule 27 of CPC seeking to
produce additional documents. That defendant/appellant
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herein has been placed exparte by the First Appellate
Court. That the First Appellate Court considering the
grounds urged in the appeal and also by allowing the
application filed under 41 Rule 27 of CPC by the plaintiff,
set aside the judgment and decree passed by the Trial
Court and eventually decreed the suit as prayed for. Being
aggrieved by the same, defendant is before this Court.
5. The following substantial question of law is
raised for consideration;
"Whether the First Appellate Court is justified
in granting the relief as sought for by the plaintiff
directing the defendant to rectify the survey
number of the suit property mentioned in the
deed of sale dated 15.08.1978 by inserting
Sy.No.134 instead of Sy.No.133/2A solely based
on the Ex.P2 an order passed by the Assistant
Commissioner in the proceedings initiated by the
plaintiff under Section 136(2) of the Karnataka
Land Revenue Act, 1964 in the case
No.R:Mis.246/2014 without adverting to the
pleadings of the plaintiff and the issue of
limitation?".
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6. Sri.Shashi Kumar G.V, learned counsel for the
appellant reiterating the grounds urged in the
memorandum of appeal submitted that;
(a) First Appellate Court without taking into
consideration of the fact that the plaintiff had not adduced
evidence sufficient enough for grant of relief for
Rectification of Deed of conveyance as rightly found by the
Trial Court, had erred in allowing the appeal directing the
defendant to rectify the Sy.No.133/2A of the property
subject matter of deed of sale dated 15.08.1978 from
Sy.No.133/2A to Sy.No.134.
(b) First Appellate Court being the court of facts
ought to have adverted to all the issues including one with
regard to the limitation, in that he submits that sale deed
is dated 15.08.1978 and the suit has been filed on
05.02.2018 without there being any explanation
whatsoever as to the date on which the plaintiff learnt the
discrepancies in the Survey number.
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(c) It is his further submission that proceedings
initiated by the plaintiff challenging the revenue entries
made in the name of defendant in respect of Sy.No.134
and the order passed by the Assistant Commissioner in the
said proceedings is the basis on which the suit is filed. As
such, the First Appellate Court ought not to have decreed
the suit as the matter pertains to the rights of the parties
in respect of immovable property.
(d) It is his submission that First Appellate Court
ought to have independently assessed the evidence even if
the defendant had not contested the matter. Thus, he
submits that impugned judgment and order suffers
perversity requiring substantial question of law to be
answered in favour of the defendant/appellant.
7. Sri.B.Ramesh, learned counsel for the
respondent on the other hand justifying the impugned
judgment and order submits that First Appellate Court had
taken into consideration the order passed by the Assistant
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Commissioner which was passed in this proceedings
initiated on account of change of revenue entries that was
effected upon the demise of the vendor of the father of the
plaintiff. He submits that cause of action for the purpose of
filing of the suit ought to be reckoned from the date the
Assistant Commissioner had passed the order. Calculated
accordingly, the suit was well within time. Thus, he
submits that the material relied upon by the First Appellate
Court to grant the decree is, the order passed by the
Assistant Commissioner, which was passed on 24.04.2017,
and the suit has been filed just within one year thereafter.
Hence, he submits that substantial question of law needs
to the answered in favour of the respondent.
8. Heard. Perused the records.
9. It is not in dispute that the father of the
defendant had executed the deed of sale dated
15.08.1978 in favour of the father of the plaintiff
conveying an extent of 4 guntas of land purportedly
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forming part of Sy.No.133/2A. Case of the plaintiff is that
he realized that the said extent of 4 guntas of land
conveyed in his favour was indeed formed part of land in
Sy.No.134 only, when the mutation entries were effected
in the name of the defendant upon the demise of his
father. Evidence produced by the plaintiff in support of his
contention is the order dated 24.04.2017 passed by the
Assistant Commissioner in R.Mis.No.246/2014. The said
proceedings were initiated by the plaintiff apparently on
account of change of mutation entries whereby the name
of the defendant was inserted in the revenue records in
respect of Sy.No.134 upon the demise of his father. The
Trial Court had declined to grant the relief and had
dismissed the suit, not being satisfied with evidence
produced by the plaintiff. The aforesaid facts and
circumstances and the evidence has weighed in the minds
of the First Appellate Court to grant the relief of
rectification of deed of conveyance as sought for.
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10. As noted above except producing the order
passed by the Assistant Commissioner in a proceedings
initiated by the plaintiff himself, no other evidence has
been produced in justification of his claim that he was
conveyed 4 guntas of land in Sy.No.134 and not in
Sy.No.133/2A.
11. The matter goes to the root of very identity and
existence of immovable property. That too long after the
deed of sale having been executed on 15.08.1978. No
explanation for filing the suit in the year 2018 except the
said order of the Assistant Commissioner is produced. It
also has effect on the right, title, interest in respect of
immovable property of the parties involved in the matter.
It may be that the defendant has not been diligent in
prosecuting the matter though he was represented by a
counsel before the Trial Court. However, the contention of
the defendant is that he was not served with the notice
before the First Appellate Court.
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12. Be that as it is. From the records what is
emanating is that the Trial Court dismissed the suit for
want of cogent and acceptable evidence from the plaintiff
and the First Appellate Court decreed the suit based on the
order of the Assistant Commissioner alone and nothing
else.
13. This Court on the holistic reading of the matter
is of the considered view that both the plaintiff and the
defendant be given an opportunity to adduce additional
evidence and present their case in the manner known to
law. Such that the real issue in controversy would be
adjudicated legally, effectively and finally.
14. In that view of the matter, this Court is of the
considered view, that judgment and order passed by the
First Appellate Court suffers from perversity in that the
First Appellate Court could not have decreed the suit
merely based on the order passed by the Assistant
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Commissioner without adverting to other factual aspects of
the matter including the issue of limitation.
15. At this juncture, learned counsel for the
appellant seeks liberty to file written statement and an
opportunity to present his case. Counsel for the
respondent submits that such liberty be reserved subject
to payment of cost. Submission is taken on record.
16. In view of the above, following;
ORDER
(i) Appeal is allowed.
(ii) Order dated 19.04.2021 passed in
R.A.No.101/2019 by the First Appellate Court is
set aside.
(iii) Matter is remitted back to the Trial Court
subject to payment of cost of Rs.10,000/-
payable to the plaintiff before the Trial Court.
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(iv) Parties shall appear before the Trial Court on
04.03.2024 without any further notice.
(v) The appellant shall file his written statement
within 15 days from 04.03.2024.
(vi) The Trial Court shall dispose of the matter
within an outer limit of one year from the said
date after affording sufficient opportunities to
the parties to lead their evidence without being
influenced by the order passed in this appeal. It
is made clear that the opinion expressed in the
order is only limited to the order of remand and
not on the merits.
Sd/-
JUDGE
RU
