Karnataka High Court
Smt K Shanthamma W/O Jagadeesha vs The Milk Producer Co-Operative Union ... on 29 February, 2024
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
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RSA No. 466 of 2008
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
REGULAR SECOND APPEAL NO. 466 OF 2008 (RES)
BETWEEN:
SMT. K.SHANTHAMMA
W/O JAGADEESHA,
D/O.LATE.DATTHATHREYASWAMY,
AGED ABOUT 46 YEARS,
DATTHATHREYA MATT,
BABRAYANA KOPPALU VILLAGE,
K.SHETTIHALLI HOBLI,
SRIRANGAPATNA TALUK,
MANDYA DISTRICT.
...APPELLANT
(BY SRI.DHANANJAY., ADVOCATE FOR
SRI.M.ASHWATHANARAYANA REDDY., ADVOCATE)
AND:
Digitally signed by 1. THE MILK PRODUCER CO-OPERATIVE UNION LTD.,
THEJASKUMAR N
BABURAYANA KOPPALU VILLAGE,
Location: HIGH
COURT OF K.SHETTIHALLI VILLAGE,
KARNATAKA SRIRANGAPATNA,
MANDYA DISTRICT-571 438.
REPRESENTED BY ITS SECRETARY.
2. SRI. SUKESH KUMAR
S/O.PATEL RAJEGOWDA,
AGED ABOUT 44 YEARS,
BABURAYANA KOPPALU VILLAGE,
K.SHETTIHALLI HOBLI,
SRIRANGAPATNA TALUK,
MANDYA DISTRICT-571 438.
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RSA No. 466 of 2008
3. SRI. KRISHNEGOWDA
S/O KOLI JAVARAIAH,
AGED ABOUT 54 YEARS,
EX-PRESIDENT OF THE MILK PRODUCER
CO-OPERATIVE UNIO LIMITED,
BABURAYANAKOPPALU VILLAGE,
K.SHETTIHALLI HOBLI,
SRIRANGAPATNA TALUK,
MANDYA DISTRICT-571 438.
4. SRI CHANDRU
S/O.NAGESHA,
AGED ABOUT 42 YEARS,
R/O BABURAYANA KOPPALU VILLAGE,
K.SHETTIHALLI HOBLI,
SRIRANGAPATNA TALUK,
MANDYA DISTRICT-571 438.
5. SRI.S.DEVARAJU
S/O.SHIVALINGE GOWDA,
AGED ABOUT 44 YEARS,
R/O BABURAYANA KOPPALU VILLAGE,
K.SHETTIHALLI HOBLI,
SRIRANGAPATNA TALUK,
MANDYA DISTRICT-571 438.
6. SRI CHALUVARAJU
S/O.PONNANNA GOWDA,
AGED ABOUT 44 YEARS,
R/O BABURAYANA KOPPALU VILLAGE,
K.SHETTIHALLI HOBLI,
SRIRANGAPATNA TALUK,
MANDYA DISTRICT.
7. SRI JAYARAMU
S/O.KULLE GOWDA,
AGED ABOUT 44 YEARS,
R/O BABURAYANA KOPPALU VILLAGE,
K.SHETTIHALLI HOBLI,
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RSA No. 466 of 2008
SRIRANGAPATNA TALUK,
MANDYA DISTRICT-571 438.
...RESPONDENTS
(BY SRI.B.M.KENCHEGOWDA., ADVOCATE FOR
SRI.V.N.MADHAVA REDDY., ADVOCATE FOR R1 & 5;
SMT.SHOBHA., ADVOCATE FOR
SRI.H.C.SHIVARAMU., ADVOCATE FOR R2 TO 4 & 6;
R7 - SERVED AND UNREPRESENTED)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC, SEEKING CERTAIN RELIEFS.
THIS REGULAR SECOND APPEAL IS COMING ON FOR
FINAL HEARING, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
Sri.Dhananjay., learned counsel on behalf
Sri.M.Aswathanayarana., for appellant, Sri.B.M.Kenchegowda.,
learned counsel on behalf of Sri.V.N.Madhava Reddy., for
respondents 1 & 5 and Smt.Shobha., learned counsel on behalf
of Sri.H.C.Shivaramu., for respondents 2 to 4 & 6 have
appeared in person.
Notice to respondent No.7 was ordered on 12.08.2008. A
perusal of the office note depicts that the notice to respondent
No.7 was served. The seventh respondent has neither engaged
the services of an advocate nor conducted the case as a party
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in person. Hence, this Court proceeds to pass orders on the
merits of the case.
2. This is an appeal from the Court of Prl. Civil Judge
(Sr.Dn) & J.M.F.C., Srirangapatana.
3. For convenience's sake, the ranking of the parties
shall be referred to as per their status and ranking before the
Trial Court.
4. The brief facts are these:
The plaintiff filed a suit for recovery of possession of the
suit property i.e., a vacant site measuring East-West 19 feet
and North-South 17 feet situated at Baburayanakoppalu Village
Srirangapattana Taluk. The plaintiff contended that her father
was in possession and enjoyment of a property called
Dattatreya Matt situated at Baburayanakoppalu Village,
measuring East West 50 feet and North-south 60 feet where he
had constructed a Dattatreya Matt over an area measuring
East-West 21 feet and North-South 25 feet. The remaining area
was kept vacant where coconut and other plants were planted.
It is stated that the entire Matt was covered by a compound
wall.
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It is said that the father of the plaintiff Dattathreyaswamy
executed a Will in favor of the plaintiff bequeathing the entire
property in her favor and he died on 16.07.2001 and she
continued in possession of the Matt.
It is contended that during the lifetime of
Dattathreyaswamy, one Nagesha caused interference with the
peaceful possession and enjoyment of the property, and
therefore, the father of the plaintiff filed a suit in
O.S.No.71/1999. The suit was compromised between
Dattathreyaswamy and the said Nagesha. It is contended that
the suit property never belonged to the Grama Panchayath and
the defendants have no right or title over the property.
Contending that the defendants managed to dispossess the
plaintiff from the suit property, she filed a suit for recovery of
the possession under Section 6 of the Specific Relief Act.
After the issuance of the suit summons, defendants 1 to 7
appeared through their counsel. Defendants 4 and 6 filed their
written statements together and defendants 1, 5 & 7 also filed
their written statements together. They denied the plaint
averments and specifically denied that the suit property
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belonged to the plaintiff's father Dattathreyaswamy and also
his possession over the property in question. They also denied
the execution of the Will in favor of the plaintiff. Among other
grounds, they prayed for the dismissal of the suit.
Based on the above pleadings, the Trial Court framed
issues. The parties led evidence and marked the documents.
On the trial of the action, the Trial Court vide Judgment and
Decree dated 10.11.2006 dismissed the suit. Aggrieved by the
Judgment & Decree of the Trial Court, the plaintiff preferred an
appeal before the First Appellate Court. The First Appellate
Court vide Judgment & Decree dated 21.08.2007 dismissed the
appeal and confirmed the Judgment and Decree of the Trial
Court. Hence, the plaintiff has filed this Regular Second Appeal
under Section 100 of CPC on several grounds as set-out in the
Memorandum of appeal.
5. This Court vide order dated:04.09.2015 admitted
the appeal and framed the following substantial question of
law:
Whether the Judgment and decree of both the
Courts below are perverse in failure to consider the
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admission of the defendants and have wrongly
dismissed the suit of the plaintiff?
6. Sri.Dhananjay., learned counsel for the appellant
submits that both the Judgment & Decree of the Trial Court and
the First Appellate Court are contrary to the evidence on record
and law and the same are liable to be set aside.
Next, he submits that the suit was filed by the plaintiff
within six months from the date of dispossession and the same
has been established by cogent and convincing evidence.
However, the Courts failed to appreciate the same from the
proper perspective.
Lastly, he submits that viewed from any angle, the
Judgment & Decree of the Trial Court and First Appellate Court
are unsustainable in law and the same are liable to be set
aside. Counsel therefore, submits that the Regular Second
Appeal may be allowed.
7. Sri.B.M.Kenchegowda., learned counsel for
respondents 1 & 5 and Smt.Shobha., learned counsel for
respondents 2 to 4 & 6 justified the Judgments and Decrees of
the Trial Court and the First Appellate Court. They submit that
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the Regular Second Appeal is devoid of merits and the same
may be dismissed.
8. Heard, the contentions urged on behalf of the
respective parties and perused the appeal papers with utmost
care.
9. The facts are sufficiently stated and do not require
reiteration. Suffice it to note that the suit is one for recovery of
possession. It is the specific case of the plaintiff that she is the
daughter of one Dattatreyasway and he has executed a Will
bequeathing the property in question in her favor. Thus, she
has become the absolute owner of the property in question.
However, in her cross-examination, she states that she does
not know the name of her father and how her father acquired
the property. There is nothing on record to show that the
property belonged to her or her father. The plaintiff has failed
to prove the Will also.
The suit is one for recovery of possession filed under
Section 6 of the Specific Relief Act. The object of the section is
to protect possession. A person who has been dispossessed
otherwise than in due course of law can claim restoration of
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possession. Needless to say that, it is only a person who has
possession may sue under Section 6 of the Act. He can succeed
merely by establishing that he was in possession over the land
and has been dispossessed otherwise than in accordance with
the law. It is pivotal to note that the plaintiff has failed to prove
that her father was in possession of the property and has also
failed to prove that after his demise, she continued to be in
possession of the property in question. Furthermore, the
defendants never admitted the claim and possession of the
plaintiff over the suit schedule property. The Trial Court has
rightly appreciated the material evidence on record and
dismissed the suit. The First Appellate Court on re-appreciation
of the material evidence on record, rightly confirmed the
Judgment and Decree of the Trial Court.
10. The substantial question of law is answered
accordingly. For the reasons stated above, the Regular Second
Appeal is devoid of merits and it is liable to be dismissed.
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11. Resultantly, the Regular Second Appeal is
dismissed.
Sd/-
JUDGE
MRP
