Karnataka High Court
Sri Erakondaiah vs The State Of Karnataka on 11 January, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 858 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 858 OF 2011 (DEC/INJ)
BETWEEN:
1. SRI. ERAKONDAIAH,
DECEASED BY LRS
1(A). SMT. GURAMMA,
W/O LATE ERAKONDAIAH,
AGED ABOUT 94 YEARS.
1(B). SMT. MAHALAKSHMAMMA,
D/O LATE ERAKONDAIAH,
W/O LATE ANKAIAH,
AGED ABOUT 65 YEARS.
1(C). SMT. JAYALAKSHMAMMA,
AGED ABOUT 63 YEARS,
Digitally signed
by SHARANYA T D/O LATE ERAKONDAIAH,
Location: HIGH W/O LATE RAMAIAH.
COURT OF
KARNATAKA
1(A) TO (C) ARE R/OF
NO.30, 4TH STAGE,
MANJUNATHAPURA,
GOKULAM,
MYSORE - 570 002.
2. SRI. P. NARASIMHAIAH,
DEAD BY LRS.
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RSA No. 858 of 2011
2(A). SMT. SUBBAMMA,
W/O LATE P. NARASIMHAIAH,
AGED ABOUT 57 YEARS.
2(B). SRI. SRINIVASA,
AGED ABOUT 38 YEARS,
S/O LATE P. NARASIMHAIAH.
2(C). SMT. VENKATALAKSHMI,
AGED ABOUT 35 YEARS,
D/O LATE P. NARASIMHAIAH.
2(D). SMT. BHULAKSHMI,
AGED ABOUT 32 YEARS,
D/O LATE P. NARASIMHAIAH.
2(E). SMT. ADILAKSHMI,
AGED ABOUT 28 YEARS,
D/O LATE P. NARASIMHAIAH.
2(A) TO (E) ARE R/AT
NO.24, 4TH STAGE,
YADAVAGIRI, GOKULAM,
MYSORE - 570 002.
3. SRI. C. KONDAIAH,
AGED ABOUT 62 YEARS,
S/O CHANNAIAH,
R/AT MEDAR BLOCK,
BAMBOO BAZAAR,
DEVARAJA MOHALLA,
MYSORE - 570 001.
4. SRI. V. CHINNAKONDAIAH,
DEAD BY LRS.,
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RSA No. 858 of 2011
4(A). SMT. CHINNAVENKATAMMA,
W/O LATE V. CHINNAKONDAIAH.
4(B). SRI. RAMANNA,
S/O LATE V. CHINNAKONDAIAH,
GED ABOUT 56 YEARS.
4(C). SRI. BALAKONDAIAH
S/O LATE V. CHINNAKONDAIAH,
AGED ABOUT 54 YEARS.
4(C)(1). KUMAR,
S/O BALAKONDAIAH,
AGED ABOUT 45 YEARS,
R/AT NO.34, III STAGE,
MANJUNATHAPURA, GOKULAM,
MYSORE.
4(D).. SRI. V.C. NARAYANA,
S/O LATE V CHINNAKONDAIAH,
AGED ABOUT 51 YEARS.
4(E). SRI. RAMACHANDRA,
S/O LATE V. CHINNAKONDAIAH,
AGED ABOUT 47 YEARS.
4(F). SMT. LAKSHMI,
SINCE DEAD BY LRS
4(G)(A). SRI. DASHRATH,
HUSBAND OF LATE LAKSHMI,
AGED ABOUT 43 YEARS.
4(G)(B). KUM RAMYA,
D/O LATE LAKSHMI,
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RSA No. 858 of 2011
AGED ABOUT 22 YEARS.
4(G)(C). HEMANTH KUMAR,
MINOR,
R/BY HIS NATURAL FATHER
SRI. DASHRATH.
4(H). SMT. DHANALAKSHMI,
D/O LATE V. CHINNAKONDAIAH,
AGED ABOUT 45 YEARS,
NO.4(A) TO 4(G) AND 4(H) ARE
R/AT NO.34, III STAGE,
MANJUNATHAPURA, GOKULAM,
MYSORE - 570 002.
5. SRI. P. KONDAIAH,
S/O PEDDA KONDAIAH,
AGED ABOUT 66 YEARS.
R/AT MEDAR BLOCI,
BAMBOO BAZAAR,
DEVARAJA MOHALLA,
MYSORE - 570 001.
...APPELLANTS
(BY SRI. M. SHIVAPRAKASH, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY ITS CHIEF SECRETARY,
GOVERNMENT OF KARNATAKA,
REVENUE DEPARTMENT,
M.S. BUILDING,
BANGALORE - 560 001.
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RSA No. 858 of 2011
2. THE DEPUTY COMMISSIONER,
MYSORE DISTRICT,
D.C. OFFICE,
MYSORE - 560 001.
3. THE SPECIAL DEPUTY COMMISSIONER,
MYSORE DISTRICT.
D C OFFICE BUILDING,
MYSORE - 570 001.
4. THE ASSISTANT COMMISSIONER,
HUNSUR SUB-DIVISION,
HUNSUR - 571 105.
5. THE TAHASILDAR,
HUNSUR TALUK,
HUNSUR - 571105.
6. SMT. MALLAMMA,
W/O LATE A C VISHWANATH,
AGED ABOUT 69 YEARS.
7. SMT. PUSHPA,
W/O M.R. JAYASHANKAR,
AGED ABOUT 49 YEARS,
D/O LATE A C VISHWANATH.
8. SRI. A V KUMAR,
S/O LATE A C VISHWANATH,
AGED ABOUT 47 YEARS.
NO.6 TO 8 ARE R/AT
SULEKEREKAVAL,
BILIKERE HOBLI,
HUNSUR TALUK - 571 105.
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RSA No. 858 of 2011
9. SRI. A V CHANNABASAPPA,
S/O LATE A C VISHWANATH,
AGED ABOUT 45 YEARS,
R/AT NO. 18, SONAR STREET,
CHAMARAJA MOHALLA,
MYSORE - 570 001.
10. SMT. BASAMMA,
W/O LATE LINGAPPA,
AGED ABOUT 89 YEARS,
R/AT ALANAHALLI VILLAGE,
HAMPAPURA HOBLI,
H D KOTE TALUK,
MYSORE DISTRICT - 571 114.
...RESPONDENTS
(BY SRI. P. MAHESHA, ADVOCATE FOR C/R6 TO R10;
SMT. M.V. ADHITHI, AGA FOR R1 TO R5;
VIDE ORDER DATED 08.01.2020, APPEAL AGAINST R10 IS
DISMISSED AS ABATED)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 25.1.2011 PASSED IN
R.A.NO.1007/2009 ON THE FILE OF THE I ADDL. DISTRICT
JUDGE, MYSORE, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT AND DECREE DATED:5.9.2009 PASSED IN
O.S.NO.18/2002 ON THE FILE OF THE CIVIL JUDGE (SR.DN) &
JMFC., HUNSUR.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RSA No. 858 of 2011
JUDGMENT
This matter is listed for admission and heard both the
counsel and also learned HCGP.
2. The factual matrix of the case of plaintiff in the
O.S.No.18/2002 is that the suit schedule property originally
belongs to the Highness Maharaja of Mysore and the same was
sold in favour of Smt.Bhagyalaxmi under a registered sale deed
dated 27.09.1963. The same was sold to the plaintiff vide sale
deed dated 02.06.1966 and the same was registered on
06.07.1966. It is also the case of the plaintiff before the Trial
Court to restrain the defendants from interfering with peaceful
possession and enjoyment of the suit schedule property.
Hence, sought for relief of declaration as well as permanent
injunction.
3. The defendants appeared and also filed a written
statement contending that originally the property belongs to
the Forest Department and the said Forest Department handed
over the property to the Revenue Department and thereafter it
was legally granted to defendants No.6 to 10. The defendants
have also alternatively sought for the relief of adverse
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possession, contending that they are in possession for a period
of 40 years.
4. The Trial Court has considered the issues and
additional issues framed by the defendants. The parties have
lead their evidence before the Trial Court. The plaintiff No.1 is
examined before the Trial Court as PW-1 and also two
witnesses as PW-2 and 3 on the other hand defendant No.5,
Tahasildar has examined himself as DW-1. The defendants
have examined the Power of Attorney Holder i.e. DW-2 and
also examined another witness as DW-3. The plaintiffs relied
upon the documents Ex. P.1 to 35 and defendants on D.1 to
103. The Trial Court having considered both appellant and
defendants, answered the issues No.1, 2 and 3 in the
affirmative and issue No.4 in negative, since defense was
taken, the suit is barred for non joinder of necessary parties, so
also answered issue No.5 in negative and answered the Addl.
issue No.1 in affirmative and Addl. issues No.2 and 3 in
negative. The Trial Court came to the conclusion that the
defendants have not proved their case and also not proved the
case for adverse possession.
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5. Being aggrieved by the judgment and decree, an
appeal is filed i.e.R.A.No.1007/2009. The First Appellate Court
on reappreciation of the available material on record,
formulated the point whether the judgment and decree of the
Trial Court suffers from any illegality. The said point was
considered and answered in negative and dismissed the first
appeal.
6. The present second appeal is filed against the
concurrent findings of both the Courts. The main contention of
counsel for appellant in the second appeal is that, both the
Courts have failed to consider the documents Ex.D.1 to 5 and
sketch prepared at Ex.D.20 and 21 and not applied its judicial
mind. Findings of the Trial Courts are misreading of evidence
and drawing inference of inadmissible evidence resulted in a
serious legal infirmity and not considering the origin of title in
the first instance under alleged sale transaction through GPA
dated 27.09.1963 and 06.07.1996 resulted in substantial
injustice and concurrent error committed by the Courts below.
Hence, this Court has to raise substantive question of law.
Learned counsel vehemently relies upon documents D.1 to 3
and submits that the property belongs to the Forest
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Department and was released in favour of Revenue Department
and thereafter it was granted in favour of defendants.
7. Per contra, learned counsel for appellant
vehemently contends that the document Ex.D.32 clearly
discloses that the property belongs to the Highness Maharaja of
Mysore and all the revenue records stand in his name and
property was sold in favour of Smt.Bhagyalakshmi under a
registered sale deed in Ex.P-16 in the year 1963 and
vehemently contends that Smt.Bhagyalakshmi sold the
property in favour of the plaintiff in the year 1966 by executing
a sale deed in Ex.P-9. The counsel contends that the Trial Court
while considering the relief of declaration had gone into the
original title of Highness Maharaja of Mysore and flowing of title
in favour of Smt.Bhagyalakshmi, thereafter in favour of the
plaintiff. The counsel vehemently contends that the suit is also
filed in respect of Sy.No.1 of Sulekere Kavalu Villge, Block
No.49 to the extent of 11 acres 20 guntas and Block No.50 to
the extent of 8 acres 20 guntas having common boundaries.
The counsel contends that both the Courts have not considered
the documents, which have been produced by the plaintiff as
well as the defendants and not accepted the case of the
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defendants and have not taken note of the previous documents
of Highness Maharaja of Mysore of 1950 and flowing of title in
the year 1963, 1966 and claim of defendants in respect of
property from 1969 onwards and rightly not considered the
documents at Ex.D.1 to D.3.
8. Learned counsel for the state submits that the
contention made before the Trial Court is that it is the property
of Forest Department and the same was transferred to the
Revenue Department and when they have suffered a decree
and they have not filed any appeal and now there is a inter se
dispute between plaintiff and defendants No.6 to 10.
9. Having heard appellant's counsel and also counsel
for respondents, it is clear that dispute is with regard to the
schedule property mentioned in the suit i.e. in respect of land
bearing Sy.No.1, Block No.49 to the extent of 11 acres 20
guntas and also in respect of Block No.50 to the extent of 8
acres 20 guntas. The plaintiff claims that the property
originally belongs to the Highness Maharaja of Mysore and also
relies upon the documents in Ex.P.32, wherein Sy.No.1 of
Sulekere Kavalu Village is also included in the list of properties
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mentioned in the immovable properties of Highness Maharaja
of Mysore. The suit schedule property is sold in favour of
Smt.Bhagyalakshmi in the year 1963 and also in turn she has
sold the property in favour of the plaintiff. The Trial Court
having considered the documents of D.1 to D.3 and also Ex.P.9
and P.16, while answering the issues No.1 to 3 as well as Addl.
issues No.1 and 2, taken note of the fact that the initial burden
is on the plaintiff to prove the suit schedule properties as
properties of Highness Maharaja of Mysore. The Trial Court
also took note of the fact the same has been substantiated with
cogent and concurrent evidence of undisputed point time of the
year 1950. Documents of flow at Ex.P-9, 16 and 32, the
documents of flow of title are prior to the documents of
defendants, which have been claimed by the defendants i.e.D.1
to 3. The registered sale deeds have also been acted upon by
entering the plaintiff's predecessors name in revenue record of
the suit schedule property and also taken note with regard to
the material available on record and Ex.P.33 is also an order
passed by the High Court of Karnataka in W.P.Nos.4851 to
4862/1983 and the said order is in favour of the plaintiff. It is
also important to note that the Trial Court having considered
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the documents Ex.D.1 to 3 and on perusal of the Ex.D.1, under
which the appellant claims that the original property belongs to
the Forest Department and the same is released in favour of
the Revenue Department is concerned, the survey numbers are
not in respect of Sy.No.1 of Sulekere Kavalu and different
survey numbers are mentioned. It is also important to note
that the Trial Court having considered the documents on
record, came to conclusion that the defendants have failed to
prove that the suit schedule property belongs to the Forest
Department and also comes to the conclusion that the
defendants have failed to prove their actual possession and
enjoyment of the suit schedule property. The Trial Court also
came to the conclusion that the defendants have failed to prove
legal transfer of land from the Forest Department to the
Revenue Department, particularly in respect of suit schedule
property. The Trial Court also took note of the adverse
possession pleading made by the defendants. It is also
important to note that the First Appellate Court took note of the
oral and documentary evidence on record, particularly Ex.P.32
and also took note of evidence of the Tahasildar. He has given
admission that the suit schedule property is the property of the
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Forest Department, which was transferred in favour of the
Revenue Department and he has categorical admission that no
documents are placed before this Court to establish the claim of
the defendants. The First Appellate Court also considered the
evidence of DW.2 in paragraph No.53 and the answers, which
have come out of the mouth of DW.2 and in paragraph No.55
also it is noted ignorance pleaded by him. The Trial Court has
also given anxious consideration to both oral and documentary
evidence available on record and considered all the documents
of the defendants in paragraph No.63, including Ex.D.1 to 3,
under which the defendants relied upon and the concurrent
findings of the Trial Court.
10. Admittedly, when the appeal is filed as against the
concurrent findings with regard to the factual aspects is
concerned, there must be ignoring of material evidence on
record while considering both oral and documentary evidence.
Both the Trial Court and the First Appellate Court elaborately
dealt with the material on record, taking into consideration of
both oral and documentary evidence. The main contention of
the counsel for the defendant is that both the Courts have not
considered the documents Ex.D.1 to 3 and sketch prepared at
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Ex.D.20 and 21. Having considered the findings of the Trial
Court, the Trial Court elaborately dealt with regard to the
Ex.D.1 to 3 and as regards the sketch in Ex.D.20 and 21.
When the plaintiff has made out the case that the property
belongs to the Highness Maharaja of Mysore and when the
defendants claim that the property belongs to the Forest
Department, which is subsequently handed over to the
Revenue Department and also issues have been framed by the
Trial Court . In view of the defense taken in the written
statement additional issues have been framed and the same
has been answered in detail, in coming to the conclusion that in
respect of the suit schedule property the defendants have not
proved their claim and the claim of the plaintiff is in respect of
Sy.No.1, Block No.49 and 50 to the extent of total 20 acres of
land. Hence, I do not find any error committed by the Trial
Court as well as the First Appellate Court in considering both
oral and documentary evidence. Though the counsel for
defendants vehemently contends that the substantial question
of law has to be framed with regard to non consideration of
document Ex.D.1 to 3, the same is taken note of in paragraph
No.63 of the judgment of the Trial Court. Hence, I do not find
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any substantial question of law to frame, since both the Courts
have dealt with the matter in detail, considering both oral and
documentary evidence. In absence of non consideration of
those documents, question of admitting the second appeal does
not arise invoking Section 100 of CPC. Hence, in view of the
discussions made above, I pass the following order:
ORDER
Regular Second Appeal is dismissed.
Sd/-
JUDGE
NJ
CT:SNN
