Karnataka High Court
Muttanna vs Jagadish Kumar B C on 29 February, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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RSA No. 729 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 729 OF 2019 (PAR)
BETWEEN:
MUTTANNA
S/O NANJAPPA,
AGED ABOUT 65 YEARS,
R/O KONANURU VILLAGE,
ARAKALAGUDU TALUK,
HASSAN - 573 130.
...APPELLANT
(BY SRI. R.S. RAVI, SENIOR COUNSEL FOR
SRI. AKARSH KUMAR GOWDA.,ADVOCATE)
AND:
Digitally JAGADISH KUMAR B C
signed by
SUMA B N S/O LATE CHINNASWAMI SHETTY
Location: DEAD BY LRS.
High Court
of Karnataka
1. ANASUYA
W/O LATE JAGADISH KUMAR B.C.,
2. NAGARJUNA
S/O LATE JAGADISH KUMAR B C,
3. LATA
D/O LATE JAGADISH KUMAR B C
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RSA No. 729 of 2019
4. MANJUNATH B.C.
S/O LATE CHINNASWAMI SHETTY
AGED ABOUT 54 YEARS
ALL ARE R/O KONANUR VILLAGE
ARAKALAGUDU TALUK
HASSAN DISTRICT.
5. K.S. RAMESH
S/O LATE K.R. SUBBANNA
6. K.S. SURYANARAYANA RAO
S/O LATE K.R. SUBBANNA
RESPONDENTS 5 AND 6 ARE
R/AT DOOR NO.6/16, 9TH CROSS
4TH MAIN ROAD, CHAMARAJPET
BENGALURU - 560 041.
7. K.S. RAMESH
S/O LATE K.R. SUBBANNA
R/O DOOR NO.878, 28TH CROSS
19TH MAIN ROAD, 4TH BLOCK
CHAMARAJPET
BENGALURU - 560 041.
K.S. SURYANARAYANA RAO
S/O LATE K.R. SUBBANNA
DEAD BY LRS;
8.
JAYAMMA @ PUSHPA
W/O LATE K.S. SURYANARAYANA RAO
9.
DRUVAKUMAR
S/O LATE K.S. SURYANARAYANA RAO
RESPONDENTS NO.8 AND 9 ARE
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RSA No. 729 of 2019
R/O VEERGO APARTMENT
27TH CROSS, RAJARAJESHWARI
NAGAR, BENGALURU - 560 098.
KRISHNA MURTHY
10. S/O K.R. SUBBANNA
R/AT DOOR NO.6/16, 9TH CROSS
4TH MAIN ROAD, CHAMARAJPET
BENGALURU - 560 041.
RAMA RAO
S/O SUBBANNA
DEAD BY LRS;
SAVITHRI
11.
W/O LATE RAMA RAO
BALASUBRAMANYAM
12. S/O LATE RAMA RAO
RESPONDENTS 11 AND 12 ARE
R/AT NO.570, 43RD CROSS, 1ST MAIN
8TH BLOCK, JAYANAGARA
BENGALURU - 560 082.
...RESPONDENTS
(BY SRI. BALAJI A M FOR C/R4,
NOTICE TO R1 TO R3 H/S V/O DATED:07.11.2022;
NOTICE TO R5-R12 IS D/W V/O DATED:06.09.2019)
THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE
JUDGEMENT & DECREE DTD 04.02.2019 PASSED IN
R.A.NO.159/2017 ON THE FILE OF THE PRINCIPAL DISTRICT
JUDGE, HASSAN, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGEMENT AND DECREE DTD 18.11.2017, PASSED IN
OS.NO.81/2008 (OLD NO.14/2006) ON THE FILE OF THE
SENIOR CIVIL JUDGE & JMFC ARAKALAGUD.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RSA No. 729 of 2019
JUDGMENT
This appeal is by the unsuccessful plaintiff aggrieved
by the judgment and decree dated 18.11.2017 passed in
O.S.No.81/2008 (old O.S.No.14/2006) on the file of the
Senior Civil Judge & JMFC, Arkalgud (hereinafter referred
to as 'Trial Court' for short) which is confirmed by the
judgment and order dated 04.02.2019 in R.A.No.159/2017
on the file of the Principal District Judge, Hassan
(hereinafter referred to as 'First Appellate Court' for
short).
2. The above suit in O.S.No.81/2008 (old
O.S.No.14/2006) is filed by the appellant/plaintiff for
following reliefs;
"a) To declare that the Sale Deed dated
29.05.1959, vide document No. 1077/1959-60,
executed by Shamanna in favour of Subbanna is
illegal ab-initio, non-est and is not binding on the
plaintiff.
b) To declare that the Sale Deed dated
27.12.1978, vide document No.3381/1978-79,
executed by Subbanna's children K.S.
Suryanarayana Rao and K.S. Ramesh in favour of
the defendants is illegal, null and void-ab-initio,
non-est and is not binding on the plaintiff.
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c) (i)To declare that the plaintiff is the absolute
owner in possession of the suit property to the
extent of 1/4th share of the defendants No.5 to 8
and for partition of 4/5th share against the
defendants No.5 to 8 awarding symbolical
possession as the plaintiff has already been in
lawful physical possession of the same.
(ii) Alternatively to declare that the plaintiff's
licence has become irrevocable.
(d) To issue prohibitory injunctions restraining the
defendants interfering with peaceful possession
and enjoyment of the suit schedule property.
(e) For costs and such other relief's.
3. It is the case of the plaintiff that suit schedule
property being residential property bearing No.852 of
Konanuru Village, Arkalgudu Taluk, Hasan District is a
ancestral property of one Sri. Ramarao. That the plaintiff
purchased the suit schedule property on 05.02.1979 which
is part of total extent of property bearing No.852 from
Subbarao, Suryanarayarao, Krishnamurthy and Ramarao
who are the children of one Shamanna. That since 1979
and before more than 10 years the plaintiff is in actual
possession and enjoyment of the property. It is further
pleaded that defendants are claiming that they have
purchased the entire suit property from Subbanna's
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children namely, (1) K.S.Ramesha and (2)
K.S.Sathyanarayanarao in the year 1979. It is further
pleaded in the plaint that before the year 1970 plaintiff
was paying rents to the sons of Shamanna and was also
paying electricity and other charges regularly. As he has
desired to purchase the suit property for himself and
knowing fully well that the Shamanna's children are
entitled to less than 1/4th share of Rama Rao's property
had purchased particular portion of the property which
actually belong to Subbarao, Suryanarayana Rao,
Krishnamurthy and Ramarao who are the grandsons of
Ramarao. It is further pleaded that sale deed executed by
Shamanna's children in favour of plaintiff has got proper
title and that the right claimed by the defendants is invalid
and illegal as no coparcener has right to execute the sale
deed in favour of other coparcener. It is further pleaded
that plaintiff has been paid tax and khata in respect of suit
schedule property and has obtained electricity connection.
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4. That the plaintiff has been in possession of the
suit schedule property for more than 35 years and that the
sale deed executed by the Shamanna in favour of
Subbanna is not binding on the sons of Shamanna as the
said sale deed was void in law. It is also contended that
the legal notice issued by the defendants under Section
106 of the Transfer of Property Act was not maintainable
in law or on the facts, as no Courts have confirmed the
right of the defendants. But the Courts have suggested the
defendants to go for filing of suit for recovery of
possession. As such, the plaintiff is constraining to file the
present suit for declaration and other reliefs.
5. Defendants filed written statement admitting
the contents in paragraphs 2 and 3 of the plaint to be
correct. However, denied the averments made in para 4 of
the plaint. It is contended that the claim of the plaintiff
having got the right, title and interest in terms of deed of
sale dated 05.02.1978 is incorrect as the vendors of the
plaintiff had no right to sell the suit property in favour of
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the plaintiff. It is contended that Ramarao's son
Sri. Shamanna sold the property in favour of Sri.Subba
Rao on 29.05.1959. That when the suit property was sold
by Shamanna, execution of deed of sale by his son in
favour of plaintiff was illegal and one without authority. It
is contended that defendant No.1 and his brothers has
purchased the said property on 27.12.1978 from the sons
of Subbanna. As regards the averments pertaining to the
payments of rents to Subbanna, the same are denied as
false.
6. It is further contended that defendants had filed
suit in O.S.No.270/1983 for recovery of rents and also for
possession against the very plaintiff and one Rajamma and
that the said suit was decreed in favour of the defendants
on 10.09.1986. That aggrieved by the same, plaintiff had
preferred regular appeal in R.A.No.23/1986 which was
dismissed on 16.04.1991. It is further contended that
without the knowledge of defendants Rajamma had
handed over the rented premised to the plaintiff. Ever
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since then the plaintiff is in possession of the said
property. It is also contended that plaintiff had demolished
wall between his house and house of Rajamma. That these
defendants have filed proceeding in HRC No.1/1996 for
recovery of rented properties from the plaintiff before the
Court of Civil Judge, (Jr. Dn) Arakalgud, Hassan and in
view of the amendment to the Rent Control Act, as
Konanuru village was not coming under the Rent Control
Act the defendants withdrew the said petition and filed a
suit in O.S.No.124/2000 against the plaintiff for ejectment.
The said suit was dismissed for want of issuance of notice
under Section 106 of the Transfer Property Act. That
defendants have initiated a fresh proceedings which is still
pending. On these grounds sought for dismissal of the
suit.
7. Based on the pleadings, Trial Court framed the
following issues for consideration;
"1. Whether the plaintiff proves that the sale deed
dated 29/5/1959 executed by Shamanna in favour
of Subbanna is not binding on him?
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2. Whether the plaintiff proves that the sale deed
dated:27/12/1978 executed by children of
subbanna in favour of defendants is null and void?
3. Whether the plaintiff proves that the sale deed
dated 05/02/1979 executed in his favour by the
children of Shamanna is a legally executed
document?
4. Whether the plaintiff proves that the
relinquishment deed of 1999 is null and void and
not binding on the plaintiff?
5. Whether the plaintiff is entitled for partition and
symbolic possession of 4/5 share out of 1/4 share
of deceased Shamanna?
6.whether the plaintiff proves that he is a licencee
in the suit property and his licence become
irrevocable under Section 60 Easement Act?
7. Whether the plaintiff proves that he is in lawful
possession of the suit property by way of adverse
possession? (Deleted!
8. Whether the defendants prove that there is no
cause of action for the suit?
9. Whether the defendants prove that the suit is
barred by Res-judicata?
10. Whether the suit is barred by limitation?
11. Whether the plaintiff proves that he is entitled
for relief as prayed in the plaint?
12. What order or Decree?".
8. Plaintiff examined himself as PW.1 and
exhibited 60 documents marked as Ex.P1 to Ex.P60.
Defendant No.1 examined himself as DW.1 and exhibited 5
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documents marked as Ex.D1 to D5. On appreciation of
pleading and oral documentary evidence the Trial Court
answered the issue Nos. 1 to 6 and 11 in the negative.
Issue no. 7 was deleted. Issue No.8 to 10 are answered in
the affirmative and consequently dismissed the suit. Being
aggrieved by the same, plaintiff preferred regular appeal
in R.A.No.159/2017 before the First Appellate Court.
Considering the grounds urged by the parties, the First
Appellate Court framed the following points for its
consideration.
"1. Whether the trial Court erred in knowing the
scope of the present suit which is basically a suit for
general partition filed by the alienee?.
2. Whether the trial Court erred in not noticing the
nature of O.S.270/1983 when it was only a suit for
recovery of rent and possession and it was not a
suit for declaration of title?
3. That the trial Court erred in holding that the
plaintiff is basing his title on the sale deed of the
year 1979, but the plaintiff is basing his title from
the date of birth of the predecessor of his title on
his vendors;
4. That the trial Court erred in not noticing the
absence of consent by the sons of Shamanna and
the absence of legal necessity?
5. Whether the trial Court erred in appreciating the
oral and documentary evidence available on
record?".
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9. On re-appreciation of the evidence the First
Appellate Court answered the point Nos.1 to 5 in the
negative and consequently dismissed the appeal
confirming the judgment and decree passed by the Trial
Court. Being aggrieved by the same, plaintiff is before this
Court.
10. Sri. R.S.Ravi, learned Senior counsel appearing
for Sri. Akarsh for the plaintiff/appellant reiterating the
grounds urged in the memorandum of appeal submitted
that;
(a) Shamanna, the father of vendors of the plaintiff
had acquired the property under the deed of partition
of the year 1953 as per Ex.P11. He submits that
under the deed of partition Shamanna had got only
1/4th share, right ,title and interest in the property.
Since the vendors of the plaintiff being coparceners
also had the share in the property.
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(b) It is his further submission that as such
Shamanna could not have sold his 1/4th share of the
property in favour of his brother Subbanna in terms
of deed of sale dated 29.05.1959.
(c) He further submits that since it is a coparcenary
property without there being a legal necessity there
could not have been any alienation. As such the
alienation was void-ab-initio creating no right, title
and interest in favour of Subbanna. Since the
children of Subbanna who are the vendors of the
plaintiff /Muttanna were not party to the said deed of
sale, they had every right to convey their share,
right, title and interest in favour of plaintiff which
was done in terms of deed of sale dated 05.02.1979.
Plaintiff has thus acquired lawful title over the suit
property. Thus, he submits that alienation made by
the Shamanna in favour of Subbanna his brother on
29.5.1959 is apart from being invalid and illegal was
not binding on the plaintiff.
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(d) He further submits that claim of the defendant
No.1 that he purchased the property from one
Thyagaraj who in turn purchased the property from
children of Subbanna was also illegal and was not
binding on the plaintiff.
(e) He submits that Trial Court and the First
Appellate Court though have held that said suit
property is a ancestral property without adverting to
the rights of the vendors of the plaintiff could not
have decreed the suit as sought for. Thus, the finding
and conclusion arrived at by the Trial Court and the
First Appellate Court suffers from perversity giving
raise to substantial question of law warranting
consideration at the hands of this Court.
11. Per contra, learned counsel for the
respondents/defendants justifying the judgment and
decree passed by the Trial Court and First Appellate Court
submitted that;
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(a) at the outset the plaintiff does not have locus
standi to question and challenge the deed of sale
dated 29.05.1959 executed by Shamanna in favour
of Subbanna as the said deed of sale has remained
unchallenged till filing of the present suit by the
plaintiff.
(b) He submits that plaintiff cannot plead ignorance
of the existence of the said deed of sale inasmuch as
the defendants had initiated the proceedings in
O.S.No. 270/1983 seeking arrears of rents and
recovery of possession which was decreed and
challenge made by the plaintiff to the said decree
resulted in dismissal confirming the right, title and
interest of the defendants.
(c) He further submits that in the said suit the
defendants have placed on record all material facts
and evidence regarding the acquisition of title by
them right from the year 1959 till the year 1978
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under which defendant No.1 had purchased the
property.
(d) He submits that plaintiff being aware of these
transactions cannot be expected to keep quite for
over 23 years till he filed the suit in the year 2006.
Thus, he submits that suit per-se not maintainable as
the same was hopelessly barred by limitation and the
Trial Court and the First Appellate Court having taken
into consideration of these aspects of the matter
have rightly dismissed the suit. Thus, he submits that
no substantial question of law would arise for
consideration in the matter requiring indulgence of
this Court and seeks for dismissal of the suit.
12. Heard. Perused the records.
13. From the perusal of the records it is seen that
one Ramarao had four sons namely, (1) Shamanna (2)
Subbanna (3) Narayana Rao and (4) Suryanarayana Rao.
It appears in a partition which was entered into between
the said four sons of Ramarao in the year 1953, 1/4th
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share of the property was allotted to each of the sons.
Subject matter of the present suit is 1/4th share that was
allotted to the share of Shamanna. That said Shamanna in
terms of a deed of sale dated 29.05.1959 conveyed his
1/4th share in favour of his brother Subbanna.
Subsequently, two sons of Subbanna namely, (1)
Suryanarayanarao and (2) Ramesh in turn executed deed
of sale dated 27.12.1978 in favour of defendant No.1 and
one Mr. Thyagaraj. That said Thyagaraj stated to have
executed a registered deed of relinquishment on
13.12.1998 relinquishing his share, right, title and interest
in favour of defendant No.2/B.C.Manjunath.
14. The claim of the plaintiff is that children of
Ramarao namely, (1) Subbarao (2) Suryanarayana Rao
(3) Krishnamurthy (4) Ramarao by executing the deed of
sale dated 05.02.1979 conveyed the 1/4th share, right,
title and interest of Shamanna which had devolved upon
them after his demise in favour of the plaintiff. It is the
contention of the plaintiff that property being the ancestral
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joint family property could not have been made subject
matter of the alienation by Shamanna in favour of
Subbanna on 29.5.1959 without there being any legal
necessity or without his children named above being party
to the said document.
15. The Trial Court and the First Appellate Court
have taken note of these pleading made by the plaintiff
and have come to the conclusion that plaintiff being
stranger to the family has no locus standi to question the
alienation made by the Shamanna in favour of his brother
Subbanna, that too, when none of the members of the
family, more particularly his sons who are vendors of
plaintiff themselves did not raise any objection with regard
to said alienation made by the Shamanna in favour of his
brother Subbanna. That apart, the Trial Court and the First
Appellate Court have also taken note of fact that once
Shamanna had sold the property in favour of Subbanna
there remained nothing at the hands of his sons to convey
the property in favour of the plaintiff on 05.02.1979. The
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Courts have also taken note of the fact in the interregnum
Subbanna's sons had further sold the property in favour of
defendant No.1 and one Thyagaraj on 27.12.1978. Taking
note of these aspects of the matter the Trial Court and the
First Appellate Court have come to the conclusion that the
plaintiff who claims to have purchased the property on
05.02.1979 which is subsequent to execution of deed of
sale dated 27.12.1978 in favour of defendant No.1 and
one Thyagaraj did not get any share, right, title or interest
in the subject property.
16. The Trial Court and the First Appellate Court
have further taken note of the proceedings initiated by the
defendants against the very plaintiff in O.S.No.270/1983
seeking recovery of rents and the possession of the
property and which was decreed in favour of defendants
and challenge to which made by the plaintiff by filing
regular appeal in R.A.No.23/1986 having met with
rejection, had attained finality. Plaintiff having kept quite
for over two decades filed the present suit for declaration.
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17. As rightly observed by the Trial Court and First
Appellate Court under the guise of seeking declaration of
his title the plaintiff is indeed seeking to set at naught the
deeds of sale dated 29.05.1959 and 27.12.1978 which
under the facts and circumstances of the matter is
impermissible in law.
18. Trial Court had adverted to all these grounds
and for the reasons assigned therein and concurred and
confirmed by the First Appellate Court suit of the
appellant came to be dismissed.
19. No error, irregularity or illegality can be found
with the reasoning and conclusion arrived at by the Trial
Court and confirmed by the First Appellate Court. No
substantial question of law would arise for consideration in
the matter. Accordingly, appeal is dismissed.
Sd/-
JUDGE
