Karnataka High Court
Sri C Anandagowda vs Smt Nagalakshmi on 2 July, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 1912 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 1912 OF 2023 (INJ)
BETWEEN:
1. SRI C. ANANDAGOWDA
S/O LATE C. CHOWDAPPA,
AGED ABOUT 30 YEARS,
R/O BADAVANAHALLI,
DODDERI HOBLI,
MADHUGIRI TALUK-572112
TUMAKURU DISTRICT.
...APPELLANT
(BY SRI. V B SIDDARAMAIAH.,ADVOCATE)
AND:
1. SMT. NAGALAKSHMI
Digitally signed W/O RANGANATHA,
by DEVIKA M AGED ABOUT 35 YEARS,
Location: HIGH
COURT OF 2.
KARNATAKA SRI. B.R. RAMAKRISHNA
S/O LATE SHANBHOG RANGAPPA,
AGED ABOUT 68 YEARS,
THE RESPONDENTS ARE
R/O BADAVANAHALLI,
DODDERI HOBLI,
MADHUGIRI TALUK,
TUMAKURU DISTRICT--572112
3. SMT. C. ANUPAMA
W/O MUTTAIAH,
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RSA No. 1912 of 2023
AGED ABOUT 31 YEARS,
R/AT PIPELINE ROAD,
BAAVESHWARANAGARA,
KANAKAPURA TOWN-562109
RAMANAGARA DISTRICT.
...RESPONDENTS
(BY SRI KASHYAP N. NAIK, ADVOCATE FOR C/R1 AND R2)
THIS RSA IS FILED SECTION 100 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 23.08.2023.PASSED IN
R.A.NO.54/2017 ON THE FILE OF ADDITIONAL SENIOR CIVIL
JUDGE AND JMFC, MADHUGIRI, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 23.03.2017
PASSED IN O.S.NO.310/2012 ON THE FILE OF PRINCIPAL CIVIL
JUDGE AND JMFC, MADHUGIRI
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This matter is listed for admission. Heard the
learned counsel for the appellant and the learned counsel
for the respondents.
2. The factual matrix of case of the plaintiff in
O.S.No.310/2012 that the suit Sy.No.5/4 totally
measuring 2 acre 10 guntas. It was originally belongs to
one Chennaiah Lakshmana and Chennarayappa. One
Nagamma and her minor son Rangappa purchased 1 acre
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5 guntas out of 2 acre 10 gunta under registered sale deed
dated 19.12.1962. Thereafter, one Chowdaiah purchased 1
acre 5 guntas under registered sale deed dated
28.02.1982 from Nagamma and Rangappa. Then the said
Chowdaiah converted the land measuring 1 acre 5 guntas
in Sy.No.5/4. In the year 1979 and 1983 Chowdaiah sold
sites to the third parties and they are residing therein. It is
also contended that after conversion, the eastern portion
of 1 acre assigned as Sy.No.5/4A3 middle portion assigned
as Sy.No.5/2A3 and its most western side measuring 5
guntas assigned and re-numbered as Sy.No.5/4A1 by the
concerned survey authorities under Haddu basth phodi
durasthi work. As such in the year 1993 this Sy.No.5/4A1
and Sy.No.5/4A3 lands are amalgamated to total extent of
1 acre 5 guntas. The defendant No.2 preferred an appeal
against the said survey work before D.D.L.R, Tumakuru
which is pending.
3. It is also contended that the husband of the
plaintiff No.1 and father of the plaintiff No.2 was in
possession and enjoyment of the suit properties. After his
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demise, they are in possession of the suit properties by
changing revenue records in their names and out of the
said total extent of 30 x 100 feet in the suit item No.2 the
said Chowdappa has gifted the northern side measuring
30 x 100 feet to his sister Smt.Chowdamma under
registered Gift deed dated 17.05.1995 by retaining item
No.2 towards southern side. In this regard suit between
C.Chowdappa and his vendors in O.S.No.304/1995 is
pending before this Court.
4. It is also contended that the father of the
defendant No.2 B.Rangappa was the owner of the land
situated on the western side of the suit schedule
properties and after his death, defendant No.2 has got
created a layout plan up to the western side of the
Badavanahalli Annappa Nayakanahalli road by cropping
the suit item No.2 in order to knock off the property of
plaintiffs. The defendants illegally collusion with the
concerned panchayat created some documents without
knowledge and notice of C.Chowdappa. The defendant
No.2 has sold site No.4 in the said layout plan to the
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defendant No.1 illegally and thereby defendant No.2 has
trying to alienate the site Nos.1 to 3 illegally to third
person. Even during the lifetime of C.Chowdappa and after
his demise present plaintiffs have given objections to the
concerned panchayat authorities for their said illegal acts
but panchayat has not taken any action against the illegal
acts of the defendants. On the basis of illegal records
defendants are trying to interfere with the plaintiffs
peaceful possession and enjoyment of the suit property.
5. In pursuance of the suit summons, the
defendant No.1 has appeared and filed written statement
contending that plaintiffs are claiming falsely to an extent
of East-West: 30 feet and North-South:10 feet within the
boundaries mentioned in the suit schedule property and
whatever the property mentioned in the western side the
land of B.Rangappa is not correct because there is no
space for the plaintiffs in between the
Kanapanayakanahalli road the land of B.Rangappa and as
detailed in the written statement filed by the defendant
No.2. The land of D.Rangappa extend up to said K.P.Halli
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road and on its eastern side this defendant has purchased
as site No.4 formed in Sy.No.6/a/a/a by its previous owner
D.V.Krishnamurthy the brother of the said B.Rangappa
and they were enjoyed that the property up to that road
towards east. On conversion they formed a layout and this
defendant purchased one site bearing khata
No.1228/6/a/a/a from Sri.B.R.Ramakirhsna who is the son
of B.Rangappa who acquired the said property by means
of a registered partition. From the date of purchase this
defendant is in possession and enjoyment of the suit
property up to K.P halli road. He constructed residential
house much earlier to the date of suit on the said site
facing to the main road i.e., towards K.P.Halli road. This
defendant adopted the remaining fact contended by the
defendant No.2.
6. The defendant No.2 has filed written statement
by contending that there was a partition by means of
registered partition deed dated 20.11.1962 between
B.Narayan Rao and his son, B.Rangappa and
B.V.Krishnamurthy who are the sons of B.Venkatappa.
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According to partition, the land bearing Sy.No.6 also the
subject matter of the partition. Then there was a
registered partition on 17.10.1966 amongst B.Rangappa
the defendants father and D.V.Krishnamurthy in respect of
Sy.No.6. The land bearing Sy.No.6 was given to the share
of B.Krishnamurthy. Later both D.V.Krishnamurthy and
B.N.Rangappa S/o B.Narayana Rao have jointly applied for
conversion of their land in Sy.No.6 vide ANL.Cr.33/
1996 -97, dated 30.05.1997 and got converted their land
for non-agricultural purpose. Thereafter, layout plan was
prepared and same has approved by competent authority.
7. It is also contended that the document shows
that enjoyment of land Sy.No.6 up to K.P.Halli road on its
eastern side of the family of this defendant. Thus plaintiffs
or Chowdappa or their vendors never in possession and
enjoyment of any piece of land towards west of the
K.P.Halli at any point of time.
8. The Trial Court having considered the
pleadings of the parties, framed the issues and allowed the
parties to lead evidence. The Trial Court granted the relief
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in respect of item No.1 and in respect of item No.2 is
concerned, the Trial Court comes to the conclusion that
possession has not been proved and dismissed the suit in
respect of item No.2. The plaintiff has also filed an appeal
in R.A.No.54/2017.
9. Being aggrieved by the dismissal of suit in
respect of item No.2 is concerned, an appeal is filed in
R.A.No.54/2017 before the First Appellate Court. The First
Appellate Court having considered the grounds urged in
the appeal memo, formulated the point whether the
appellant made out the ground to permit to produce the
additional documents and whether the Trial Court was
justified in holding that plaintiff failed to prove the lawful
possession as on the date of filing of the suit and whether
it requires interference of this Court. The First Appellate
Court comes to the conclusion that considering overall
evidence of plaintiffs and defendant it clearly goes to show
that plaintiff fails to substantiate the boundaries of the
suit item No.2 by placing cogent evidence and also plaintiff
fail to prove the actual possession of the suit item of the
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property as stated in the plaint and answered the point as
affirmative in coming to the conclusion that the Trial Court
rightly dismissed the suit.
10. Being aggrieved by the said finding, the
appellant in his argument vehemently contend that the
Trial Court fail to take note of topography of the item
No.2 of the suit schedule property and there was a gift
deed in favour of his sister in terms of Ex.P23 and
remaining extent only to the extent of 5 guntas as per
Ex.P13 and the same is not taken note of by the Trial
Court as well as the First Appellate Court. The counsel also
would vehemently contend that even boundary also tallies
with the document of Ex.P2 which came into existence in
the year 1984 subsequent to the earlier sale deed of the
year 1982 Ex.P1, wherein also the boundary is mentioned
as the property of the purchaser. These are the aspects
which have not been considered.
11. Per Contra, the counsel appearing for the
respondent would vehemently contend that no doubt they
have purchased the property to an extent of 1 acre 5
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guntas, but survey was conducted and after surveying the
land only available to an extent of 1 acre and 5 guntas
was not there in the actual existence. The counsel brought
to notice of this Court document Ex.D44, Ex.D45 and
Ex.D46 wherein also after the measurement found only 1
acre of land. There was a reference in the document of
Ex.D44, Ex.D45 and Ex.D46 and only having 1 acre of
land.
12. It is also important to note that the description
mentioned in respect of item No.2 is concerned as land
bearing Sy.No.5/4A1 totally measuring 5 guntas which
was converted into vacant site and boundaries are also
given. When the document of Ex.D44, Ex.D45 and Ex.D46
clearly discloses that the land available only to the extent
of 1 acre and not 1 acre 5 guntas. Those documents are
also produced before the Court and both the Trial Court as
well as the First Appellate Court taken note of extent of
land. Having consider Ex.P43, no doubt an attempt is
made to alienate the property to an extent of 1 acre 5
guntas, but available only to an extent of 1 acre i.e., also
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found in document Ex.D43 and so also in Ex.D44 which is
very clear that in respect of 1 acre instead of 1 acre 5
guntas and Ex.D45 also discloses that amendment is made
to an extent of 1 acre and not 1 acre 5 guntas. Having
considered all these documents, it is very clear that the
existence of the property only to an extent of 1 acre even
Ex.D46 also is very clear that Nagamma is in possession of
the property to an extent of 1 acre and not to an extent of
1 acre 5 guntas. When such being the case, both the Trial
Court as well as the First Appellate Court taking into
consideration of material available on record, particularly
documentary evidence comes to the conclusion that
property is available only total to an extent of 1 acre and
in respect of item No.2 is concerned, existence of property
has not been proved. When such finding is given by the
Trial Court as well as the First Appellate Court considering
the material on record. I do not find any ground to admit
and frame any substantial question of law while granting
the relief of permanent injunction plaintiff must prove the
boundary as well as the existence of the property and
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when the documents of Ex.D43 and Ex.D46 is very clear
that the property available is only to an extent of 1 acre
and not 5 guntas is concerned and relief is also only for
the relief of 5 guntas of land as item No.2. Hence, I do not
find any force in the contention of the appellant's counsel.
13. In view of the discussions made above, I pass
the following:
ORDER
i) The Second Appeal is dismissed.
ii) In view of dismissal of the appeal, I.As., if any
do not survive for consideration, the same stands disposed
of.
Sd/-
JUDGE
RHS
