Karnataka High Court
Basavarajappa S/O Kawalappa vs U. Siddesh S/O Late U. Siddabasapa on 16 January, 2024
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RSA No.5449 OF 2010
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 16TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
REGULAR SECOND APPEAL NO.5449 OF 2010
BETWEEN:
MANJANNA
E 1. BASAVARAJAPPA
Digitally signed S/O.KAWALAPPA
by MANJANNA E
Date: 2024.01.24 AGE: 52 YEARS
15:44:50 +0530
OCC: AGRICULTURE
R/O.NADUMAVINAHALLI
KUDLIGI TALUKA-583 135
BALLARI DISTRICT- 583 101
2. SMT.RATNAMMA
W/O.BASAVARAJAPPA
AGE: 47 YEARS
OCC: AGRICULTURE
R/O.NADUMAVINAHALLI
KUDLIGI TALUKA- 583 135
BALLARI DISTRICT-583 101
2A. SMT.SHANTAMMA
W/O VEERESH
AGE: 30 YEARS
OCC: AGRICULTURE
R/O SOKKE,
JAGALUR TALUKA-577528
DAVANAGERE DISTRICT-577 001
2B. RANAGANATH
S/O.BASAVARAJAPPA
AGE: 28 YEARS
OCC: AGRICULTURE
R/O.NADUMAVINAHALLI
KUDLIGI TALUKA-583 135
BALLARI DISTRICT-583 101
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RSA No.5449 OF 2010
2C. SMT.SHILPA
W/O.UJJANAGOUDA
AGE: 26 YEARS
OCC: AGRICULTURE
R/O.BHUJANG NAGAR
SONDUR TALUKA-583 119
BALLARI DISTRICT- 583 101
2D. KUM.SAVITRAMMA
D/O.BASAVARAJAPPA
AGE: 24 YEARS
OCC: HOUSEHOLD
R/O.NADUMAVINAHALLI
KUDLIGI TALUKA-583 135
BALLARI DISTRICT-583 101
...APPELLANTS
(BY SRI.B.C.PATTAR, ADVOCATE)
AND:
U.SIDDESH
S/O.LATE U.SIDDABASAPPA
AGE: 48 YEARS
OCC: DOCTOR
R/O.KANAGONDANAHALLI
DAVANAGERE TALUKA & DISTRICT-577 001
...RESPONDENT
(BY SRI.BASAVANA GOUDA T, FOR
SRI.T.KOTRESHI, ADVOCATE)
***
THIS REGULAR SECOND APPEAL IS FILED U/S 100 OF CPC,
PRAYING TO AGAINST THE JUDGMENT & DECREE DATED:
03.03.2010 PASSED IN R.A.NO.38/2008 ON THE FILE OF THE FAST
TRACK COURT-III, HOSPET, DISMISSING THE APPEAL, FILED
AGAINST THE JUDGMENT DATED:22.12.2007 AND THE DECREE
PASSED IN O.S.NO.70/2004 ON THE FILE OF THE CIVIL JUDGE
(SR. DN) AT KUDLIGI, DECREED THE SUIT FILED FOR DECLARATION
AND INJUNCTION.
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RSA No.5449 OF 2010
THIS REGULAR SECOND APPEAL COMING ON FOR FURTHER
HEARING AND THE SAME HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 16.06.2023, THIS DAY, THE COURT PRONOUNCED
THE FOLLOWING:
JUDGMENT
Appellants/defendants feeling aggrieved by the
judgment of First Appellate Court on the file of Fast track
Court III, Hospet, in R.A.No.38/2008, dated 03.03.2010 in
confirming the judgment of Trial Court on the file of Civil
Judge (Sr.Dn.) Kudligi in O.S.No.70/2004 dated
22.12.2007 preferred this appeal.
2. Parties to the appeal are referred with their
ranks as assigned in the Trial Court for the sake of
convenience.
3. The factual matrix leading to the case of
plaintiff can be stated in nutshell to the effect that plaintiff
is the absolute owner of the suit schedule property bearing
survey No.218-D measuring 7.13 acres situated at Kalapur
village, Kudligi taluka, Bellary district. The plaintiff has
purchased the suit schedule property from Kammar
RSA No.5449 OF 2010
Jakkamma w/o late Kammar Basappa and her son
Kammar Basappa s/o Basappa under registered sale deed
dated 30.04.1986 for valuable consideration amount of
Rs.7,000/-. In pursuance of the said sale deed the vendor
of the plaintiff delivered possession of the suit property
and accordingly the name of plaintiff is recorded in the
records of the suit schedule property. One
K.Hanumanthappa s/o Basappa who was the relative of
plaintiff's vendor caused obstruction for cultivation of the
suit property, as such the plaintiff had filed the
O.S.No.96/1986 and the same was ended in compromise
on 03.02.1987. The defendants are not the owners and in
possession of any portion of the suit property are denying
the title of plaintiff and continue to cause obstruction to
the peaceful possession and enjoyment of the suit
property by plaintiff. Therefore, plaintiff was constrained to
institute the suit on hand for the relief claimed in the suit.
4. In response to the suit summons the
defendants have appeared through their counsel and filed
written statement contending that suit of plaintiff is false,
RSA No.5449 OF 2010
frivolous and not maintainable in law. It is the case of
defendants that the land bearing survey No.218-D
measuring 7.13 acres situated at Kalapur village, Kudligi
taluka in Bellary district and out of which Eastern side
portion measuring 4.53 acres was purchased by
Naganagowda for valuable consideration of Rs.4,000/-
under registered sale deed dated 10.06.1974 and
delivered the possession in favour of Naganagowda. Thus,
Naganagowda became absolute owner and in possession
of the property purchased by him. The defendants are the
relatives of Naganagowda and he has gifted the land
bearing survey No.218-D measuring 4.53 acres in favour
of these defendants under registered gift deed dated
26.05.1982. On the same day the possession was
delivered to the defendants, since then the defendants are
in actual possession and enjoyment of the properties
gifted to them by Naganagowda. In pursuance of the said
registered gift deed dated 26.05.1982 the name of
defendants were entered in the records. The survey
authorities have affected Durasti, phodi work of survey
RSA No.5449 OF 2010
No.218-D and divided into two portions. The plaintiff is
owner in possession to an extent of 2.60 acres on the
Western side and assigned with survey No.218-D/1 the
remaining extent of 4.53 acres was assigned with new
survey No.218-D/2. The said fact was well within the
knowledge of plaintiff and the plaintiff by suppressing the
said fact has filed the present suit claiming the right over
the entire extent of 7.13 acres under survey No.218-D
which is inclusive of the portion belongs to these
defendants. Therefore, on these grounds prayed for
dismissal of the suit.
5. On the basis of pleadings of the parties, the
Trial Court has framed necessary issues. The plaintiff to
prove his case relied on the oral testimony of PWs.1 and 2
and the documents Exs.P.1 to 14. The defendant have
relied on the evidence of DW.1 and the documents Exs.D.1
to 17. The Trial Court after having heard the arguments of
both sides and on appreciation of oral and documentary
evidence placed before it has decreed the suit of plaintiff.
RSA No.5449 OF 2010
6. The defendants have challenged the said
judgment and decree of the Trial Court before the First
Appellate Court in R.A.No.38/2008. The First Appellate
Court after re-appreciation of evidence by judgment dated
03.03.2010, dismissed the appeal and confirmed the
judgment and decree passed by the Trial Court.
7. Appellants/defendants challenging concurrent
findings of both the Courts below contended that judgment
and decree of First Appellate Court is based on the
erroneous consideration of the material evidence placed on
record. The Courts below proceeded to presume Ex.P.2 as
a genuine document to confer title in favour of plaintiff.
The Courts below have overlooked Ex.D.1 in favour of
Naganagowda and the registered sale deed dated
10.06.1974 who in turn gifted the same under the
registered gift deed dated 26.05.1982 to defendants which
is much prior to the execution of registered sale deed
Ex.P.2 in favour of plaintiff. The Courts below have also
conveniently ignored the extract of re settlement register
Ex.D.3 and RTC Ex.D.4 to Ex.D.7, so also failed to
RSA No.5449 OF 2010
appreciate the evidence of PW.1 U Siddesh without
considering the defendant's evidence. The Courts below
have assumed the facts themselves in favour of
respondent without there being any proper evidence. The
vendor of the plaintiff Kammar Jakkamma w/o late
Kammar Basappa and her son Basappa s/o Basappa have
not been examined to prove the title conferred by them in
favour of plaintiff under Ex.P.2. The Courts below have
overlooked and ignored the important material documents
of defendant i.e., Exs.D.1, D.2, D.9, D.10, D.12 and D.13.
The approach and appreciation of oral and documentary
evidence by both the Courts below are contrary to law and
evidence on record. Therefore, prayed for allowing the
appeal and to set aside the judgment of both the Courts
below. Consequently to dismiss the suit of plaintiff.
8. In response to the notice the respondent
appeared through counsel. This Court by order dated
11.07.2014 has admitted the appeal to consider the
following substantial question of law.
RSA No.5449 OF 2010
1) Whether the Trial Court as well as the First
Appellate Court have committed a serious error
in ignoring the material evidence placed on
record more particularly, ignoring Ex.D.1-
registered sale deed and Ex.D.2-Gift deed
which have remained unchallenged?
2) Whether both the Courts below have ignored
the material fact that Kammar Jakkamama and
her son Basappa had no right to sell the entire
suit schedule property bearing survey No.218-D
and thus, the judgments have become perverse
and illegal?
9. Heard the arguments of both sides.
10. On careful perusal of oral and documentary
evidence placed on record by parties to the suit, it would
go to show that the plaintiff is claiming his right over suit
property bearing survey No.218-D measuring 7.13 acres
situated at Kalapur village which he was purchased from
it's erstwhile owner Kammar Jakkamma and her son
Kammar Basappa under the registered sale deed dated
30.04.1986 for valuable consideration of Rs.7,000/- vide
Ex.P.2. In pursuance of the said sale deed the name of
plaintiff came to be recorded in the record of the suit
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RSA No.5449 OF 2010
property and plaintiff was put in possession of the suit
property on the date of executing the sale deed. Whereas,
the defendants are claiming their right over the land
bearing survey No.218-D measuring 4.53 acres under the
registered gift deed dated 26.05.1982 executed by
Naganagowda. The said Naganagowda has purchased the
property gifted to defendants from it's erstwhile owner
under registered sale deed dated 10.06.1974. The
defendants also contended that plaintiff is in possession of
land to an extent of 2.60 acres to the Western side of the
land belongs to defendants and the defendants are not in
possession of remaining extent of land measuring 4.53
acres. It means that plaintiff and defendants are claiming
their right over survey No.218-D. According to the plaintiff
he has purchased land bearing survey No.218-D
measuring 7.13 acres under the registered sale deed
dated 30.04.1986. The defendants are claiming their right
to the extent of 4.53 acres which was purchased by their
donor Naganagowda under registered sale deed dated
10.06.1974. Thereafter, he has gifted the said property to
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RSA No.5449 OF 2010
the defendants under the registered gift deed dated
26.05.1982. The plaintiff has contended that the vendor of
Naganagowda had no any subsisting title over the suit
property in survey No.218-D measuring 4.53 acres of land
which he lawfully can convey the same in favour of
Naganagowda. The defendants were never in possession
of the property alleged to have been gifted to them by
Naganagowda, since their donor Naganagowda himself
had no any title over the property gifted to the
defendants.
11. The Courts below have negated the claim of
defendants that they have acquired the title over land
bearing survey No.218-D measuring 4.53 acres under the
registered gift deed dated 26.05.1982 executed by their
vendor Naganagowda. The Courts below have also held
that the vendors of Naganagowda was having no any
subsisting title over the land measuring survey No.4.53
acres in survey No.218-D. Therefore, the registered sale
deed dated 10.06.1973 in favour of Naganagowda Ex.D.1
and in turn gifted the said property under registered gift
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RSA No.5449 OF 2010
deed dated 26.05.1982 Ex.D.2, does not confer any title
in favour of defendants and they were never put in
possession of the property said to have been gifted to
them by Naganagowda. However, the defendants admit
that plaintiff is the owner and in possession of the land to
an extent of 2.60 acres to the Western side in survey
No.218-D and in the remaining extent of 4.53 acres. The
defendants are claiming to be in possession of the land by
virtue of Ex.D.1 and Ex.D.2. Under the circumstances
referred above, the evidence placed on record by parties
to the suit will have to be appreciated while deciding as to
who has got better title over the extent of land measuring
7.13 acres in survey No.218-D.
12. The oral testimony of PWs.1 and 2 would go to
show that plaintiff is tracing the title by virtue of
registered sale deed dated 30.04.1986 Ex.P.2. The
husband of Jakkamma and father of Basappa has raised
loan for Rs.300/- and executed registered mortgage deed
dated 10.04.1963 vide Ex.P.3 by mortgaging entire extent
of land measuring 7.13 acres in survey No.218-D. In
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RSA No.5449 OF 2010
pursuance of the registered sale deed dated 30.04.1986
Ex.P.2 the name of plaintiff came to be recorded in the
records of the suit property. The plaintiff has produced the
RTC Ex.P.4 from 1979-80 to 1984-85 and Ex.P.5 RTC
1985-86 to 1989-90. In the said records Exs.P.4 and 5 the
name of plaintiff vendors was recorded and from the year
1986-87 as per the entries found in RTC Ex.P.5 pursuant
to the registered sale deed in favour of plaintiff dated
30.04.1986 Ex.P.2, the name of plaintiff came to be
recorded. The name of plaintiff continue to be appearing in
RTC Ex.P.6 to Ex.P.11 related to survey No.218-D to the
entire extent of land measuring 7.13 acres. The mutation
entry 35/86-87 Ex.P.12 would go to show that on receipt
of J-Form pursuant to the registered sale deed dated
30.04.1986 Ex.P.2 and after notice to the vendors of
plaintiff, the aforementioned ME came to be certified
Ex.P.12 to the entire extent of land measuring 7.13 acres.
The registered mortgage deed Ex.P.3 would go to show
that Basappa s/o Kengappa Kammar executed the
registered mortgage deed for taking loan of Rs.300/- in
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RSA No.5449 OF 2010
favour of Bassappa @ Addippan s/o Karibasappa under
registered mortgage deed dated 10.04.1963 by
mortgaging the land bearing survey No.218-D measuring
7.13 acres. It means that as on the date of execution of
the registered mortgage deed dated 10.04.1963 Bassappa
s/o Kengappa Kammar was the owner of the land bearing
survey No.218-D measuring 7.13 acres. The document
Ex.P.3 registered mortgage deed is much prior to the
registered sale deed in favour of Naganagowda dated
26.05.1982 Ex.D.2. The defendants have not challenged
the title deed of Bassappa s/o Kengappa Kammar under
the registered mortgage deed dated 10.04.1963 Ex.P.3.
Thus, the plaintiff by virtue of registered mortgage deed
Ex.P.3 has proved the title of his vendor and the plaintiff
having acquired the title over land bearing survey No.218-
D measuring 7.13 acres by virtue of registered sale deed
dated 30.03.1981 Ex.P.2. The defendants admitted the
possession of plaintiff in survey No.218-D to the extent of
2.60 acres. It means that the defendants are admitting the
title of vendors of plaintiff Bassappa s/o Kengappa
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RSA No.5449 OF 2010
Kammar at least to the extent of 2.60 acres in survey
No.218-D. Therefore, it is now up to the defendants to
demonstrate by evidence on record that the vendor of
Naganagowda was having valid title over 4.53 acres in
survey No.218-D which they have conveyed in favour of
Naganagowda under the registered sale deed dated
10.06.1974 Ex.D.1.
13. The defendants apart from the oral testimony of
DW.1 to prove title of defendants over 4.53 acres in
survey No.218-D relied on the registered sale deed dated
10.06.1973 executed in favour of Naganagowda Ex.D.1.
The said Naganagowda executed registered gift deed
dated 26.05.1982 in favour of defendants Ex.D.2.
Therefore, from the oral evidence of DW.1 and the
aforementioned documents Exs.D.1 and D.2, it is evident
that the defendants are tracing their title over 4.53 acres
of land in survey No.218-D from the vendor of
Naganagowda. The vendor of Naganagowda is one
Mallappa s/o Basappa who has executed the registered
sale deed dated 10.06.1973 Ex.D.1 in favour of
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RSA No.5449 OF 2010
Naganagowda. The defendants have not produced any
documents to show that how the vendor of Naganagowda
i.e., Mallappa s/o Basappa acquired right over survey
No.218-D to the extent of 4.53 acres in survey No.218-D.
The plaintiff have produced the registered partition deed
dated 15.07.1969 where under the son of Bharmappa i.e.,
Mallappa and his three sons Basappa, Bharmappa and
Mallappa have partitioned the family properties. On
perusal of the recitals of registered partition deed dated
15.07.1963 Ex.P.13, it would go to show that survey
No.218-D is not involved in the said partition. It means
that the land bearing survey No.218-D was never the
family properties of Mallappa. If at all the vendor of
Naganagowda, Mallappa s/o Burmappa or his last son
Mallappa was to be the owner of survey No.218-D then the
said property would have been certainly included in the
registered partition deed Ex.P.13, so also to hold that
either Mallappa s/o Burmappa or the last son of Mallappa
i.e., again Mallappa having acquired any title over the land
bearing survey No.218-D. Therefore, from the said
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RSA No.5449 OF 2010
evidence on record and non producing of any title deeds of
the vendor of Naganagowda would only demonstrate the
fact that the vendor of Naganagowda was having no any
valid title over the land bearing survey No.218-D. If that is
so, how come he execute the registered sale deed dated
10.06.1973 Ex.D.1 in favour of Naganagowda by
conveying title to the extent of 4.53 acres in the land
bearing survey No.218-D. Therefore, the execution of
registered gift deed dated 26.05.1982 Ex.D.2 by
Naganagowda in favour of defendants is without any right
title or interest over land bearing survey No.218-D to the
extent of 4.53 acres.
14. The defendants have not produced any
documents of mutation entries and RTC relating to the
land bearing survey No.218-D standing in the name of
either Naganagowda nor his vendor Mallappa. It is true
that in Ex.D.8 the nil encumbrance certificate issued by
the sub registrar, Kudligi. On going through the same, the
transactions covered under Exs.D.1 and 2 and Ex.P.2 have
all been recorded. This nil encumbrance certificate Ex.D.8
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RSA No.5449 OF 2010
produced by the defendants must be supported by the title
deed of vendor of Naganagowda. However, the defendant
have not produced single document to show the title deed
of vendor of Naganagowda relating to land bearing survey
No.218-D to the extent of 4.53 acres. It appears from
Ex.D.8 that survey No.219-C to the extent of 1 acre 20
guntas has also purchased by Naganagowda. The said
survey number can evidence placed under the registered
partition deed dated 15.07.1969 Ex.P.13. The plaintiff is
not disputing the title of Naganagowda over survey
No.219-C. The said Naganagowda has gifted both the
properties i.e., survey No.218-D measuring 4.53 acres and
survey No.219-C measuring 1 acre and 20 guntas.
However, the fact remains that survey No.218-D was not
the property involved in the partition deed Ex.P.13 and the
defendants have not produced any documents to show as
to how the vendor of Naganagowda acquired title over the
land bearing survey No.218-D to the extent of 4.53 acres.
Therefore, the vendor of Naganagowda had no any title to
convey the same in favour of Naganagowda under the
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RSA No.5449 OF 2010
registered sale deed dated 10.06.1973 Ex.D.1 and as a
consequent result Naganagowda had no any title to
convey the same in favour of defendants under registered
gift deed dated 26.05.1982 Ex.D.2.
15. Learned counsel for appellants has also
contended that the First Appellate Court was not justified
in rejecting the application filed under Order 41 Rule 27 of
C.P.C., for production of documents and to led evidence.
The document sought to be produced is the judgment and
decree on the file of Civil Judge(Sr.Dn.) Kudligi in
O.S.No.93/2007. The First Appellate Court for the reasons
recorded in para 13 of it's judgment has rejected the said
application as the same is irrelevant for considering the
dispute involved in the present suit.
16. On going through the judgment and decree
passed in O.S.No.93/2007 sought to be produced under
I.A.No.4 before the First Appellate Court, it would go to
show that plaintiff U Siddesh S/o U Nagappa filed the suit
for partition against his father and brother in the said
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partition suit 'B' schedule property at sl.nos.4 and 5 i.e.,
survey Nos.218-D, 219-C2 were also included along with
other properties. The said suit came to be partly decreed
in allotting 1/3 share to the plaintiff of the said suit except
item Nos.4 and 5 of the 'B' schedule property. It means
that the properties related to survey Nos.218-D and 219-C
decree for partition came to be rejected which are involved
in the present suit. In the said suit the present defendant
No.1 Basavarajappa was not party. The present plaintiff
and his brother Pampapati, so also defendant No.2
Rathnamma were parties to the said suit. The said
documents would have become relevant only when the
defendant in the present suit prima facie established the
title of his donor Naganagowda over the land bearing
survey No.218-D. Therefore, the said document by way of
additional evidence being unconcerned to the dispute
between parties has been rightly rejected by the First
Appellate Court.
17. It is not in serious dispute that the entire extent
of land in survey No.218-D is 7.13 acres. Out of it the
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defendants are claiming an extent of 4.53 acres under the
registered gift deed dated 26.05.1982 Ex.D.2 executed by
Naganagowda in their favour. The defendants have not
produced any documents to show that in pursuance of the
same mutation entry was certified and their names have
been recorded in RTC to the extent of land gifted to them.
The division in the said land came to be effected for the
first time on the basis of survey measurement and taluka
surveyor has issued notice Ex.D.9 and prepared the
sketch map Ex.D.10 and Ex.D.11. It is after the said
survey, the extent of 4.53 acres assigned with new survey
No.218-D/2 in the name of defendants and survey
No.218-D/1 to the extent of 2.60 acres is shown in the
name of plaintiff. This division affected by the taluka
surveyor is said to have been admitted by the brother of
plaintiff Ex.D.13 and accordingly the entries were also
found in Ex.D.15. There is no evidence placed on record by
the defendants to show that the sale deed of plaintiff
dated 30.03.1981 Ex.P.2 and earlier mortgage deed dated
10.04.1963 Ex.P.3 was taken into consideration at the
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time of effecting the survey and the surveyor has
ascertained the title of the vendor of Naganagowda who
has gifted the extent of land 4.53 acres in favour of
defendants under Ex.D.2 dated 26.08.1982. Therefore, the
subsequent bifurcation shown by the surveyor pursuant to
the notice Ex.D.9 is without ascertaining the title of
Naganagowda and the vendor of plaintiff. Therefore, the
same does not confer any title in favour of vendor of
Naganagowda or Naganagowda, so also to the defendants.
The defendants have failed to disprove the title of plaintiff
vendor based on mortgage deed dated 10.04.1963 to the
entire extent of land measuring 7.13 acres in survey
No.218-D. The defendants have further failed to prove as
to how and when, under what documents the vendor of
Naganagowda acquired title to the extent of 4.53 acres in
survey No.218-D. Therefore, the documents of registered
sale deed dated 10.06.1973 Ex.D.1 and the gift deed
executed by Naganagowda dated 26.05.1982 Ex.D.2, does
not confer any title in favour of defendants.
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18. The Courts below have rightly appreciated the
relevant documents produced by both the parties to the
suit, particularly the title deeds of the plaintiff vendor and
recorded valid reason in negating the claim of defendants
and justified in holding that the vendor of Naganagowda
had no title over the property conveyed to him under the
registered sale deed Ex.D.1 consequently gift deed
executed by Naganagowda in favour of the defendants
cannot convey valid title to defendants. The said findings
recorded by both the Courts below are based on legal
evidence placed on record and the same does not call for
any interference by this Court. Accordingly substantial
question of law are answered in negative. Consequently,
proceed to pass the following:
ORDER
Appeal filed by appellants/defendants is hereby
dismissed as devoid of merits.
The judgment and decree of the First Appellate Court
on the file of Fast track Court III, Hospet in
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R.A.No.38/2008, dated 03.03.2010 in confirming the
judgment of Trial Court on the file of Civil Judge (Sr.Dn.)
Kudligi in O.S.No.70/2004 dated 22.12.2007 stands
confirmed.
Registry to send back the records to Trial Court with
a copy of this order.
Sd/-
JUDGE
GSR
