Karnataka High Court
Sri Umesha @ Umamaheshwara vs Smt.Susheelamma on 5 July, 2024
Author: H.P. Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.S.A. NO.757/2009 (DEC)
BETWEEN:
SRI UMESHA @ UMAMAHESHWARA
SINCE DECEASED REPRESENTED
BY LEGAL REPRESENTATIVES
1(a) SMT. LEELAVATHI
W/O UMESHA @ UMAMAHESHWARA
AGED ABOUT 55 YEARS
1(b) SRI KARTHIK S.U.,
S/O UMESHA @ UMAMAHESHWARA
AGED ABOUT 33 YEARS
1(c) SMT. SMITHA S.U.,
D/O UMESHA @ UMAMAHESHWARA
AGED ABOUT 31 YEARS
ALL ARE RESIDENT OF
NO.34, BENAKA, 1ST CROSS,
KANAKA LAYOUT,
SHIMOGA - 577 201.
... APPELLANTS
(BY SRI M.RUDRAIAH &
SRI AJAY KUMAR M., ADVOCATES)
2
AND:
1. SMT. SUSHEELAMMA
W/O LATE R.LAKSHMANA,
AGED ABOUT 50 YEARS
R/O DURGAPPA BUILDING,
R.M.C. ROAD
DAVANAGERE-577001.
2. SAGAR TOWN MUNICIPAL COUNCIL,
NOW CITY MUNICIPAL COUNCIL,
SAGAR-577401,
SHIMOGA DISTRICT
BY ITS CHIEF OFFICER.
... RESPONDENTS
(BY SRI VISHWANATH R.HEGDE, ADVOCATE FOR R2;
R1 - SERVED)
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 10.02.2009
PASSED IN R.A.NO.60/2007 ON THE FILE THE CIVIL JUDGE
(SR.DN) SAGAR AND ETC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 01.07.2024 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
3
JUDGMENT
This second appeal is filed against the concurrent finding of
the Trial Court as well as the First Appellate Court in granting the
relief of declaration and possession in respect of the
plaintiff/respondent No.1 herein.
2. Heard the learned counsel appearing for the
appellants and the learned counsel appearing for respondent
No.2. The plaintiff is served but unrepresented.
3. The parties are referred to as per their original
rankings before the Trial Court to avoid confusion and for the
convenience of the Court.
4. The factual matrix of the case of the plaintiff before
the Trial Court that the suit schedule property is the absolute
property of her mother Lakshmamma W/o Subba Rao. After the
death of Subba Rao, Lakshmamma and the plaintiff are residing
and holding joint possession of the said property. Except the
plaintiff, no other issues were there to this Lakshmamma. There
is two portions house in the said property. But on 05.09.1971,
Lakshmamma expired by leaving the plaintiff alone as her legal
heir. After the expiry of her mother, the plaintiff was looking
after the suit schedule property and also residing in the same.
Within one year of the death of her mother, the plaintiff got
married one R Lakshmana of Davanagere, who is the driver by
profession. Later on, she has settled at Davanagere along with
her husband. During that occasion, she gave two portions of
house i.e., the suit schedule property to the tenants. Herself
and her husband were looking after the suit schedule property
during that occasion. The house situated in the suit schedule
property is an old one. So, one portion of the same had fallen
down. By considering this aspect, the tenants, without the
knowledge of the plaintiff, vacated the house. So, she made her
mind to reconstruct the said building. Accordingly, gave
application to respondent No.2-Town Municipal Council, Sagara
for reducing the assessment of the said property. But during the
pendency of the proceedings, one Ammayamma trespassed into
the suit schedule property during February, 1982 and since then,
occupied the same unlawfully. She did not have any right, title
or interest over the suit schedule property to deny the title of
the plaintiff over the suit schedule property. Hence, filed the
suit for the relief declaration and possession on the ground that
defendant No.1 is in unlawful occupation.
5. In pursuance of the suit summons, defendant No.1
appeared and filed the written statement denying the entire
averments made in the plaint and also even denied the illegal
possession over the suit schedule property by defendant No.1 as
alleged in the plaint. It is contended that the plaintiff never
demanded the possession of the suit schedule property from her.
On the other hand, it is contended that she has purchased the
suit schedule property from its previous owner through a
registered sale deed for valuable consideration. So, she became
the absolute owner of the suit schedule property and in
possession of the suit schedule property from the date of
purchase. Defendant No.1 also contend that the plaintiff is not at
all the daughter of deceased Lakshmamma as alleged by her.
Even otherwise, she has perfected her title over the suit
schedule property by virtue of adverse possession. During the
pendency of the suit, the defendant No.1 expired and her legal
heir was brought on record. He also took the contention that the
suit schedule property has been granted to his mother i.e.,
defendant No.1 by defendant No.2/respondent No.2 by virtue of
the sale certificate dated 25.05.1988. So, that defendant No.1
was the absolute owner of the suit schedule property. Hence,
the plaintiff is having no manner of right, title and interest over
the suit schedule property.
6. In pursuance of the written statement, the plaintiff
filed the reply contending that the execution of any sale
certificate in favour of defendant No.1 during the pendency of
the suit will not create any right on her because respondent No.2
had no right to sell the property belonging to the others.
Respondent No.2 had issued the sale certificate to the person
who is having unlawful occupation under the guise that she is
living from long period. But the suit schedule property is
absolutely belonged to her mother. Earlier, Lakshmamma W/o
Subba Rao was the owner, after her death, the plaintiff is the
owner of the suit schedule property and resolution of respondent
No.2 is not at all giving any right, title or interest to defendant
No.1.
7. During the pendency of the proceedings, respondent
No.2 also made as a party and hence, respondent No.2 filed the
written statement contending that the suit schedule property
was granted to defendant No.1 through a registered sale
certificate. It is further contended that as proved from the
records, the site which was in possession of the mother of the
plaintiff-Lakshmamma W/o Subba Rao has been granted to her
by means of registered sale certificate. After that property was
sold by the plaintiff to Prabhavati W/o Basavaraj, through her
power of attorney holder. Hence, the suit is not maintainable.
8. Based on the pleadings of the parties, the Trial Court
framed the following Issues:
1. Whether the plaintiff is the daughter of
Lakshmamma W/o Subbarao?
2. Whether the plaintiff was the owner of the suit
schedule property?
3. Whether the plaintiff was in possession of the
suit schedule property any time within 12
years prior to the date of the suit and she was
dispossessed?
4. Whether the defendant has perfected his title
by adverse possession?
5. Whether the plaintiff is entitled to the
declaration sought for?
6. Whether the plaintiff is entitled to the
possession sought for?
7. Whether the plaintiff is entitled to the mesne
profits sought for?
8. What decree or order?
Additional Issue:
1. Whether the defendant No.1(a) proves that by
means of sale certificate dated 25.05.1988 he
became the owner of suit property?
9. The Trial Court considering the pleadings of the
parties allowed them to lead their evidence. In order to prove
the case of the plaintiff, examined two witnesses as PW1 and
PW2 and got marked the documents at Ex.P1 to P63. On the
other hand, defendant examined two witnesses as DW1 and
DW2 and got marked the documents at Ex.D1 and D2. The Trial
Court having considered both oral and documentary evidence
placed on record answered Issue Nos.1 to 3 as affirmative in
coming to the conclusion that the plaintiff is the daughter of
Lakshmamma and she is the owner of the suit schedule property
after the death of her mother and hence, the plaintiff was in
possession of the suit schedule property any time within 12
years prior to the date of the suit but she was dispossessed. The
contention of defendant No.1 that she has perfected her title by
adverse possession and the said contention is negatived by the
Trial Court. Hence, the Trial Court comes to the conclusion that
the plaintiff is entitled for the relief of declaration and possession
as sought and granted the relief as sought by the plaintiff and
directed to handover the possession of the suit schedule
property in favour of the plaintiff within the time bound period.
10. Being aggrieved by the judgment and decree of the
Trial Court, an appeal was preferred by the legal representative
of defendant No.1 in R.A.No.60/2007 (old No.107/1994). The
First Appellate Court having considered the grounds urged in the
appeal memo formulated the points which read thus:
1. Whether the appellant shows that the Trial Court
erred in holding that the respondent No.1 is the
absolute owner of the suit schedule property and
also erred in directing the appellant handing over
the possession of the property with mense
profits?
2. Whether the appellant shows that Trial Court is
erred in holding that the suit is maintainable
inspite of not challenging the Ex.D1 sale deed and
Ex.D2 sale certificate of the respondent No.1?
3. Whether the judgment and decree passed by the
Trial Court is arbitrary, capricious and calls any
interference?
4. What order?
11. The First Appellate Court having considered both oral
and documentary evidence placed on record answered the points
as negative in coming to the conclusion that the Trial Court has
not erred in coming to the conclusion that the plaintiff is the
absolute owner of the suit schedule property and also not erred
in directing the legal representative of deceased defendant No.1
to handover the possession with mesne profits and comes to the
conclusion that Ex.D1 sale deed and Ex.D2 sale certificate does
not convey any title in favour of defendant No.1 hence, the
judgment and decree of the Trial Court does not requires any
interference and dismissed the appeal filed by the legal
representative of defendant No1. Being aggrieved by the
concurrent finding of the Trial Court as well as the First Appellate
Court, the present second appeal is filed by the legal
representative of deceased defendant No.1 before this Court.
12. The learned counsel appearing for the appellant
would contend that the very approach of both the Courts is
manifestly illegal inasmuch as both the Courts have totally failed
to note that the suit was one for declaration of title and
possession hence, the entire burden of establishing the title was
on the plaintiff on which, the plaintiff has failed to do the same.
It is also further contend that it is clear from the evidence on
record that originally the property belonged to respondent No.2-
Town Municipal Council, Sagar and it had not been granted the
suit schedule property to the plaintiff or her predecessor in title
at any point of time. The assessment registers are not the
documents of title. It is further contend that both the Courts
ought to have noted that the mother of the appellant late
Ammayamma who was the original defendant No.1 in the suit
was admittedly in possession of the suit schedule property from
a long time and consequently, the Town Municipal Council has
allotted the said site to the mother of the appellant and also
issued a Sale Certificate as per Ex.D2 dated 25.05.1988. Thus,
the same establishes that defendant No.1 was the absolute
owner having right, title and interest over the suit schedule
property.
13. This Court having considered the grounds urged in
the appeal memo, admitted the appeal framing following
substantial questions of law:
1. Whether on the facts and in the circumstances
of the case, the Courts below are justified in
holding that the plaintiff had established her
title to the suit schedule property ignoring the
fact that the entry of the name in the
assessment register does not establish the title
to the property and assessment registers are
not documents of title?
2. Whether the Courts below are justified in
negativing the contentions of defendant No.1
and defendant No.1(a) that the defendant No.1
had become the owner of the suit schedule
property on the basis of the Sale Certificate
dated 25.05.1988 issued by the Town
Municipal Council, Sagar by ignoring Exhibits
D1 and D2?
3. Whether the Courts below are justified in
negativing the alternative contention of
defendant No.1(a) that his mother having been
in uninterrupted possession of the suit
schedule property for a period of exceeding 12
years prior to the date of filing of the suit had
perfected her title to the suit schedule property
by adverse possession?
14. The learned counsel appearing for the appellant in
his argument would vehemently contend that the property
belongs to respondent No.2 and the appellant's mother was in
possession of the suit schedule property and having considered
the fact of living long period, respondent No.2 has issued the
sale certificate in terms of Ex.D2. It is also his contention that
the possession was established by the mother of the appellant
and the suit is also not filed within 12 years but the only
allegation of respondent No.1 that defendant No.1 trespassed
into the suit schedule property but the same has not been
substantiated by the plaintiff placing any material before the
Court. The counsel further would vehemently contend that both
the Courts have committed an error in coming to the conclusion
that the plaintiff has established the title over the suit schedule
property and erroneously directed defendant No.1 to handover
the possession of the suit schedule property. The counsel also
would vehemently contend that Ex.D1 also discloses that
property was purchased in the year 1982 i.e., on 01.02.1982
from one Balamaniyamma and hence, the fact that defendant
No.1 was in possession of the suit schedule property from the
year 1982 and the suit was filed in the year 1983. The Trial
Court as well as First Appellate Court committed an error even
not granting the relief of declaration that defendant No.1 has
perfected her title to the suit schedule property by adverse
possession and committed an error in not accepting the
documents at Ex.D1 and D2.
15. The learned counsel appearing for respondent No.2
would vehemently contend that sale certificate is issued in
favour of Smt. Ammayamma considering the long possession
and the property belongs to respondent No.2. Based on the said
contention, this Court directed to the counsel for respondent
No.2 to produce the documents to show that the suit schedule
property belongs to respondent No.2. Accordingly, the counsel
for respondent No.2 filed an application under Order 41 Rule 27
of CPC along with the documents before the Court.
16. Having heard the learned counsel appearing for the
appellant and the learned counsel for respondent No.2 and also
considering the material on record and also in keeping the
substantial questions of law framed by this Court, this Court has
to analyse the material available on record. All the substantial
questions of law are taken up together for the consideration
since all are interlinked.
17. The main contention of the appellant's counsel
before this Court is that without any title deed pertains to the
plaintiff, a relief of declaration and possession has been granted
by the Trial Court and the same has been confirmed by the First
Appellate Court. The name of the mother of respondent No.1 in
the assessment register does not establish the title of the
plaintiff over the suit schedule property since the assessment
registers are not the documents of title. On the other hand, the
appellant produced the document of sale certificated dated
25.05.1988 issued by respondent No.2 but the Trial Court
ignored the documents at Ex.D1 and D2 and also failed to
consider the possession of the suit schedule property for a period
of exceeding 12 years prior to the date of filing of the suit had
perfected her title to the suit schedule property by adverse
possession.
18. It is important to note that this Court would like to
consider the application filed under Order 41 Rule 27(2) of CPC
filed by respondent No.2 when this Court directed to produce the
documents to show that whether the property belongs to
respondent No.2 or not. Hence, respondent No.2 produced the
documents. On perusal of the documents it discloses that none
of the documents show that the suit schedule property belongs
to respondent No.2. The documents which have been produced
also stands in the name of the plaintiff as well as one Ibrahim
Sab for the year 1975-76, 1981-82 and 1986-87. Only
document No.4 shows that the khatha extract for the year 1986-
87 entering the name of Ammayamma in the Town Municipal
Council and this document is only based on the sale certificate
issued in favour of Ammayamma. In order to prove the fact that
the suit schedule property belongs to respondent No.2, no such
document is placed before the Court. The counsel submits that
no document is availabe to show that the suit schedule property
belongs to respondent No.2 and only revenue documents are
produced and hence, these documents will not helpful to decide
the issue involved between the parties. Accordingly,
I.A.No.1/2024 filed under Order 41 Rule 27(2) of CPC is liable to
be rejected since the same is not in respect of the germane issue
involved between the parties. The contention of the appellant
that the suit schedule property belongs to respondent No.2 and
respondent No.2 had executed the document of sale certificate in
terms of Ex.D2. When the documents produced before the Court
are not in respect of germane issue involved between the
parties, the question of entertaining an application filed under
Order 41 Rule 27(2) of CPC does not arise.
19. The main contention of the counsel for the appellant
that documents which have been produced by the plaintiff do not
confer any title over the suit schedule property. It is the specific
case of the plaintiff that the suit schedule property belongs to
her mother and she was the original owner and she got the
property through her ancestors and after the death of her
mother, the property devolves on her. In order to prove the
case of the plaintiff, she relied upon the document at Ex.P2 that
is the death certificate of Lakshmamma W/o Subba Rao. The
plaintiff also claims that she is the daughter of said
Lakshmamma and Subba Rao since the same is also disputed.
In order to prove the said fact, she produced the document at
Ex.P33 - Transfer Certificate, wherein it is specifically mentioned
the name of the plaintiff of the year of admission No.132/1958-
59 and her father's name is mentioned as Subbraya. Hence,
both the Courts relied upon this document to comes to the
conclusion that the plaintiff is the daughter of Lakshmamma.
Hence, I do not find any error committed by the Trial Court in
coming to the conclusion that she is the daughter of
Lakshmamma and Subba Rao.
20. Now, coming to the aspect of granting the relief of
declaration is concerned, the plaintiff relied upon Ex.P3 i.e., the
demand register extract for the year 1979-80 wherein the name
of the mother of the plaintiff is available in the records
maintained by respondent No.2. It is also important to note that
plaintiff relies upon the document at Ex.P4 that is also
assessment list of building and lands wherein it clearly discloses
that the house is in existence and the same is for the year 1975-
76 and the said document is also in the name of the mother of
plaintiff. The plaintiff also relied upon the document at Ex.P5 for
the year 1981-82 wherein also the name of the mother of the
plaintiff is shown in respect of the house. Hence, it is clear that
the house is in existence in the suit schedule property earlier.
The plaintiff also relied upon Ex.P6 wherein also the name of the
Lakshmamma found in the demand register extract for the year
1982-83. So also produced the documents at 'P' series pertains
to respondent No.2 office and description of the suit schedule
property also given which stands in the name of the mother of
the plaintiff i.e., Ex.P7 to P10.
21. It is also important to note that respondent No.2 also
issued notice at Ex.P11 to the husband of plaintiff on
12.01.1977. The claim of the plaintiff that her mother passed
away in the year 1971 and thereafter, she got married one
Laxmana who is the husband of the plaintiff within one year of
her mother's death and this letter is addressed to the husband of
the plaintiff dated 12.01.1977. Ex.P12 to P14 are also issued by
respondent No.2 in favour of plaintiff's husband. Ex.P15 to P22
are the tax paid receipts from 1976 to 1983. Encumbrance
Certificate is also produced before the Court as Ex.P23 and P24.
The plaintiff also produced a rental agreements at Ex.P25 and
P26 executed in favour of the respective tenants and also letter
was also given to respondent No.2 by the plaintiff on 02.08.1983
at Ex.P27 stating that one Ammayamma is claiming right over
the suit schedule property creating the sale deed through one
Balamaniyamma and requested not to transfer the same. The
plaintiff, in order to establish her right in respect of the suit
schedule property, produced several documents particularly the
document of assessment register extract. It is also claim of the
plaintiff that the suit schedule property belongs to her mother
Lakshmamma as the same is the ancestors property and the
same is clear from the documents produced by the plaintiff and
even though the documents produced by respondent No.2 before
this Court also clearly show that the property stands in the name
of Lakshmamma who is none other than the mother of the
plaintiff.
22. It is also important to note that the name of the
mother of the plaintiff is entered in the register maintained by
respondent No.2 of the year 1975-76 and only katha is
transferred based on the subsequent sale certificate issued by
respondent No.2 in the year 1988. The counsel for respondent
No.2 also not disputes the fact that respondent No.2 had issued
the sale certificate. When this Court directed the counsel for
respondent No.2 to produce any documents to show that the suit
schedule property belongs to respondent No.2 or not, no such
documents are placed before the Court to substantiate the same.
Having considered the documents which have been produced by
the plaintiff before the Trial Court are the documents prior to the
execution of the sale certificate in favour of defendant No.1. It is
important to note that sale certificate issued in favour of
defendant also during the pendency of the dispute between the
parties and the plaintiff also objected for transfer of katha when
she comes to know about the sale deed executed by one
Balamaniyamma in favour of Ammayamma. It is also the claim
of defendant No.1 that she has purchased the property from
Balamaniyamma. But the said Balamaniyamma has not been
examined before the Trial Court to prove the said contention.
Whether the said Balamaniyamma having right in respect of the
property also, no document is placed before the Court by
defendant No.1. It is important to note that the sale deed was
executed in the year 1982 i.e., on 01.02.1982, But all the
documents stand in the name of the mother of plaintiff prior to
1982 and hence, the execution of sale deed in favour of
Ammayamma/defendant will not create any right in her favour.
When the counsel for the appellant contend that there is no title
in favour of the plaintiff, at the same time, burden is on the
appellant to prove that whether Balamaniyamma had right in
respect of the suit schedule property to execute the sale deed,
but no such material is placed before the Court to prove the
same. On the other hand, the plaintiff had produced voluminous
documents before the Trial Court to show that they are paying
the tax from the year 1975 onwards and the suit schedule
property belongs to her ancestors. All these documents are
considered by the Trial Court. When the counsel for the
appellant contend that the suit schedule property belongs to
respondent No.2, but respondent No.2 has not produced any
single document to prove the same. Hence, it is clear that
defendant No.1 got created the document of sale certificate in
her favour without any document of proof as to title to her
vendors.
23. The specific case of the plaintiff that the property
was tenanted and tenancy documents are also produced at
Ex.P25 and P26. When one portion of the property was fallen,
the other tenant also vacated and taking the advantage of the
said circumstances, defendant No.1 trespassed into the suit
schedule property. Voluminous documents are placed before the
Court to show that the plaintiff's mother was the owner of the
property and all records stand in her name and subsequent to
the death of her mother, the plaintiff, became absolute owner of
the suit schedule property and also she has proved that she is
the daughter of Lakshmamma by producing the document at
Ex.P33 since defendant No.1 denies that she is not the daughter
of Lakshmamma. The voluminous documents produced by the
plaintiff clearly disclose that the suit schedule property belongs
to the ancestors and all the records are stand in the name of the
mother of the plaintiff. The assessment register though does not
establish the title of the plaintiff over the suit schedule property
but the very case of the plaintiff is that the suit schedule
property belongs to her ancestors and her mother's name was
found in the documents. Under such circumstances, the Court
has to take preponderance of probabilities while considering the
case on hand. On the other hand, defendant No.1 has created
the document at Ex.D1 and D2 from the fictitious persons when
said Balamaniyamma was not the owner of the property and
respondent No.2 also not the owner of the suit schedule
property. When the plaintiff is able to prove the case of
preponderance of probabilities, Ex.D1 and D2 will not create any
right in favour of defendant No.1. Hence, both the Courts rightly
come to the conclusion that plaintiff has made out the case for
granting the relief of declaration and possession and not
accepted the documents at Ex.D1 and D2. The other substantial
question of law is also with regard to the alternative contention
of defendant No.1(a) that his mother having been in
uninterrupted possession of the suit schedule property for a
period of exceeding 12 years prior to the date of filing of the suit
had perfected her title by adverse possession. When defendant
No.1 claims the right based on the sale deed, she cannot claim
the adverse possession. Unless animus is proved and admitted
that the plaintiff is the owner of the suit schedule property and
she is in possession of the property with the knowledge of the
plaintiff, the question of granting the relief of adverse possession
also does not arise. Hence, all the substantial questions of law
are answered accordingly holding that the appellant fails to
prove his case. Such being the case, the judgment and decree of
the Trial Court as well as the First Appellate Court requires to be
confirmed and the second appeal of the appellant requires to be
dismissed.
24. In view of the discussions made above, I pass the
following:
ORDER
The regular second appeal is dismissed. Consequently, the
judgment and decree dated 06.10.1994 passed in
O.S.No.188/1983 by the Trial Court as well as the judgment and
decree dated 10.02.2009 passed in R.A.No.60/2007 by the First
Appellate Court are confirmed.
Sd/-
JUDGE
SN
