Karnataka High Court
Sri Hombalegowda vs Narasegowda on 16 January, 2024
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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RSA No. 440 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
REGULAR SECOND APPEAL NO.440 OF 2013 (INJ)
BETWEEN:
SRI HOMBALEGOWDA,
S/O LATE PUTTWGOWDA,
AGED ABOUT 59 YEARS,
R/AT VITTENEHALLI VILLAGE,
VIRUPAKSHIPURA HOBLI,
CHANNAPATNA TALUK,
RAMANAGARA DISTRICT - 570 511.
...APPELLANT
[BY SRI K.P.BHUVAN, ADVOCATE (PH)]
AND:
1. NARASEGOWDA,
S/O LATE NARASEGOWDA @ KARIGOWDA,
SINCE DECEASED BY HIS LRs
1(a) SMT. PADMA,
W/O SIDDEGOWDA,
D/O LATE NARASEGOWDA,
AGED ABOUT 45 YEARS,
1(b) SMT. MEENA,
Digitally signed D/O LATE NARASEGOWDA,
by GURURAJ D W/O VENKATESH,
Location: High AGED ABOUT 42 YEARS,
Court of
Karnataka 1(c) SRI CHANDRA,
S/O LATE NARASEGOWDA,
ALL ARE R/A MALLUR VILLAGE,
KUDLURU POST,
CHANNAPATNA TALUK,
RAMANAGARA DISTRICT.
2. RAMAKRISHNEGOWDA,
SINCE DEAD BY HIS LRs:
2(a) JAYARAMU,
S/O LATE RAMAKRISHNEGOWDA,
MAJOR,
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RSA No. 440 of 2013
2(b) KRISHNA,
S/O LARE RAMAKRISHNEGOWDA,
MAJOR,
2(c) BABY,
D/O LATE RAMAKRISHNEGOWDA,
MAJOR,
2(d) SMT. DODDAMMA,
W/O LATE RAMAKRISHNEGOWDA,
MAJOR,
3. SRI BYRALINGEGOWDA,
S/O LATE NANJAMMA SIDDALINGEGOWDA,
MAJOR,
4. SRI RAJU,
S/O KALAIAH,
MAJOR,
5. SRI SWAMY,
S/O PUTTALINGEGOWDA,
MAJOR,
ALL ARE R/AT VITTENAHALLI VILLAGE,
VIRUPAKSHIPURA HOBLI, AMENDMENT CARRIED OUT
CHANNAPATNA TALUK, VIDE COURT ORDER DT.17.8.23
RAMANAGARA DISTRICT - 571 511.
...RESPONDENTS
(RESPONDENTS ARE SERVED AND UNREPRESENTED)
THIS RSA IS FILED U/S 100 OF CPC AGAINST THE JUDGMENT
& DECREE DATED 07.11.2012 PASSED IN R.A.NO.110/2012 ON THE
FILE OF SENIOR CIVIL JUDGE AND JMFC, CHANNAPATNA,
RAMANAGARA DISTRICT, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 30.01.2010
PASSED IN OS.NO.145/2000 ON THE FILE OF PRINCIPAL CIVIL
JUDGE (JR.DN.) & JMFC, CHANNAPATNA. TRAIL COURT DISMISSED
THE SUIT. APPELLATE COURT DISMISSED THE APPEAL SUIT FOR
DECLARATION AND PERMANENT INJUNCTION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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RSA No. 440 of 2013
JUDGMENT
Challenging judgment and decree dated 07.11.2012
passed by Senior Civil Judge and JMFC, Channapatna,
Ramanagara District in R.A.no.110/2012 ('First Appellate
Court') and judgment and decree dated 30.01.2010 passed by
Principal Civil Judge (Jr.Dn.) and JMFC, Channapatna, in
O.S.no.145/2000 ('Trial Court'), this appeal is filed.
2. Appellant herein was plaintiff, while original
respondents herein were defendants and are referred to as
such herein.
3. O.S.no.145/2000 was filed by plaintiff against
defendants seeking for declaration of his title over suit schedule
property; that he had perfected his title by adverse possession;
for permanent injunction against interference and for costs etc.
Property bearing khaneshumari no.58/62/42 measuring East -
West 28½ ft. and North - South 90 ft. of Vittenahalli,
Virpakshipura Hobli, Channapatna Taluk ('schedule property'
for short).
4. In plaint, it was stated that schedule property was a
vacant house site originally belonging to Narasegowda @
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Karigowda, father of defendants no.1 and 2. Same was
purchased by Hanumanchegowda S/o late Siddegowda under
sale deed dated 25.05.1972 for valuable consideration. But,
when vendor refused to appear before Sub-Registrar to admit
execution of sale deed an appeal was filed before District
Registrar, Bangalore, in R.A.no.3/1973-74. On 22.09.1984,
said appeal was allowed. In meanwhile, Hanumanchegowda
died. His wife Ningamma, who came on record as his legal
representative also died. Alleging that during his life time,
Hanumanchegowda was put in possession. It was stated that
since plaintiff was foster son of Hanumanchegowda and
Ningamma, continued in peaceful possession and enjoyment of
schedule property. It was stated that by virtue of sale by father
of defendants in favour of Hanumanchegowda for
consideration, title of defendants with regard to scheduled
property was divested. As such, plaintiff was entitled for relief
sought for.
5. On service of suit summons, defendants no.3 to 5
filed written statement. Same was adopted by defendants no.1
and 2. While denying all plaint averments, it was stated that
schedule property originally belonged to defendant no.1.
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Defendants no.3 and 4 purchased it from defendant no.1 under
sale deed dated 08.06.1972 and thereafter sold to defendant
no.5 under sale deed dated 22.03.1999 as per recitals of which
defendant was put in possession. Hence, suit was untenable.
6. Based on pleadings, trial Court framed following
issues and additional issue:
1. Whether the plaintiff proves that he is
the owner of the suit schedule property?
2. Whether the plaintiff proves that he is in
lawful possession and enjoyment of the
suit schedule property?
3. Whether the plaintiff proves the alleged
interference caused by the defendants
over the suit schedule property?
4. Whether the suit is not maintainable as
alleged by the defendant nos.3 to 5?
5. Whether the plaintiff is entitled for the
relief as prayed by him?
6. What order or decree?
Additional Issue:
1. Whether plaintiff proves that he has
perfected his title over suit schedule
property by way of adverse possession?
7. Thereafter, plaintiff examined himself as PW.1 and
three other witnesses were also examined as PWs.2 to 4 and
Exs.P1 to P14 were marked. In rebuttal, defendants no.3 and 5
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were examined as DWs.1 and 2 and Exs.D1 to D13 were
marked.
8. On consideration, trial Court answered issues no.1
to 3, 5 and additional issue no.1 in negative, issue no.4 in
affirmative and issue no.6 by dismissing suit.
9. Aggrieved by said judgment and decree, plaintiff
preferred R.A.no.110/2012 before Senior Civil Judge and JMFC,
Channapatana, on ground that trial Court had committed error
in appreciation of evidence. It failed to notice that
Hanumanchegowda had no issues. As appellant was his foster
son, in absence of any legal heirs, merely on ground that
plaintiff was not one of legal heirs, denied relief. It was also
contended that plaintiff was entitled for relief of declaration of
his title by way of adverse possession. That trial Court jumped
to conclusion that plaintiff was not foster son of
Hanumanchegowda and as such, had not having locus-standi to
file suit. It also erred in holding that photographs produced
would not be authenticate alleged possession. It was also
contended that as per Ex.P1 - Order passed by District
Registrar would establish that father of defendants no.1 and 2
had executed sale deed in favour of plaintiff's father. It was
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also contended that plaintiff being son of brother of
Hanumanchegowda was entitled to estate of deceased in
absence of any Class-I heir.
10. Based on said contentions, first appellate Court
framed following points for consideration:
1. C¸À®Ä zÁªÀ ¸ÀASÉå 145/2000 gÀ°è ¢£ÁAPÀ
30.01.2010 gÀAzÀÄ UËgÀªÁ¤évÀ ¥ÀæzsÁ£À ¢ªÁtÂ
£ÁåAiÀiÁ¢üñÀgÀÄ (Q.«.) ªÀÄvÀÄÛ ¥ÀæxÀªÀÄ zÀeÉð £Áå¬ÄPÀ
zÀAqÁ¢üÃPÁjUÀ¼ÀÄ, ZÀ£ÀߥÀlÖt EªÀgÀÄ ¤ÃrzÀAvÀºÀ
wÃ¥ÀÄð ¸ÀªÀÄAd¸À«gÀĪÀÅ¢®èªÉAzÀÄ ªÉÄîä£À«zÁgÀgÀÄ
¸Á©ÃvÀÄ¥Àr¸ÀÄvÁÛgÉAiÉÄÃ?
2. K£ÀÄ DzÉñÀ?
11. On consideration, it answered point no.1 in negative
and point no.2 by dismissing appeal.
12. Against concurrent findings, plaintiff is in appeal.
13. Sri K.P. Bhuvan, learned counsel for plaintiff
submitted that plaintiff being brother's son of purchaser of
schedule property from father of defendants no.1 and 2, was
entitled to succeed to estate in absence of any Class-I heirs. It
was also submitted that District Registrar in order at Ex.P1,
held that refusal by father of defendants no.1 and 2 to come
forward for acknowledging execution of sale deed as
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unsustainable. Said order itself would establish divesting of title
of father of defendants no.1 and 2 over schedule property.
Therefore, defendants were estopped from claiming title.
Consequently, both Courts erred in holding that plaintiff had no
right to seek declaration. It was contended that both Courts
erred in misreading oral and documentary evidence and
therefore, submitted that following substantial questions of law
would arise for consideration:
1. Whether both Courts were justified in
dismissing suit for declaration of title
when District Registrar had held plaintiff
entitled for execution of sale deed in
respect of schedule property?
2. Whether both Courts were justified in
denying relief of permanent injunction
even after plaintiff prove his possession
over schedule property?
14. Heard learned counsel for appellant, perused
impugned judgment and decree and records. Respondents are
severed and unrepresented.
15. From above, it is seen that plaintiff is seeking to
assail concurrent findings resulting in dismissal of suit for
declaration of title and for permanent injunction against
interference.
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16. Before trial Court, plaintiff claimed that
Narasegowda @ Karegowda father of defendants no.1 and 2,
had executed sale deed in respect of schedule property on
25.05.1972 in favour of Hanumanchegowda, but refused to
appear before Sub-Registrar for admitting execution. Against
order of refusal to register, Hanumanchegowda filed appeal in
R.A.no.3/1973-74 before District Registrar, Bangalore. During
it's pendency, Hanumanchegowda died and his wife Ningamma
came on record. On 22.09.1984, appeal was allowed holding
appellant as entitled for registration of sale deed. Registration
of sale deed in pursuance of said order would conclusively
divest father of defendants no.1 and 2 of title over schedule
property. Though, Ningamma also died later on, plaintiff being
her foster son had succeeded to said property and continued in
possession and enjoyment. It was alternatively contended that
plaintiff had perfected his title over schedule property by way of
adverse possession.
17. In order to establish his case, plaintiff examined
himself and three other witnesses and also got marked copy of
order passed by District Registrar as Ex.P1; copy of order
passed in W.P.no.15865/1984 as Ex.P2; certified copies of sale
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deeds as Exs.P3 to P5; photographs with negatives as Exs.P6 to
P13 and visiting card as Ex.P14.
18. On other hand, defendants denied plaintiff's
assertion in toto and contended that he had no locus-standi to
file suit. Defendants no.3 and 5 were examined as DWs.1 and 2
and copies of sale deed, rectification deed and demand register
extract were marked as Exs.D1 to D3.
19. While passing impugned judgment and decree, trial
Court observed that plaintiff's claim of succession on basis of
foster son was not supported by any law. Insofar as declaration
of title on basis of adverse possession, it observed that said
plea was devoid of material pleading about commencement of
period of adverse possession etc. and accordingly proceeded to
dismiss suit. First appellate Court on re-appreciation confirmed
said finding.
20. It cannot be disputed that claim for declaration of
title on basis of relationship as foster son is not supported by
any law. Though, plaintiff contended before first appellate Court
that he was brother's son of Hanumanchegowda and in absence
of any Class-I heir, would succeed to schedule property. There
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is absolutely no assertion about plaintiff being nephew of
Hanumanchegowda. Only basis of claim is as 'foster son'.
Though, learned counsel for plaintiff sought to contend that
PWs.2 to 4 had corroborated such claim, it is fairly settled law
that no amount of evidence without pleading would help a party
Biraji @ Brijraji and Anr. v/s Surya Pratap and Ors.1.
Therefore, said contention would require rejection.
21. Insofar as claim for declaration on basis of adverse
possession, Hon'ble Supreme Court in case of Dharmpal
(Dead) Through Legal Representatives v/s Punjab Wakf
Board and Ors.2, held that adverse possession cannot be
granted in absence of material pleading about date of
commencement of adverse possession etc. Both Courts on
perusal of plaint have held that plaint is bereft of such material
pleading.
22. Both Courts on appreciation of entire material on
record have arrived at conclusions which are in accordance with
law.
2020 (10) SCC 729
2018 (11) SCC 449
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23. In view of above, no substantial questions of law
would arise for consideration. Hence,
Appeal is dismissed.
No order as to costs.
Sd/-
JUDGE
GRD
