Karnataka High Court
Prakasha vs B N Anandappa 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.324/2018 (DEC/INJ)
BETWEEN:
1. PRAKASHA
S/O SOMANNA
AGED ABOUT 39 YEARS
2. MANJUNATHA
S/O SOMANNA
AGED ABOUT 37 YEARS
BOTH ARE
R/AT VASAPPA COLONY,
TARIKERE TOWN,
TARIKERE TALUK,
CHIKMAGALUR DISTRICT-577228. ... APPELLANTS
(BY SRI VIRUPAKSHAIAH P.H., ADVOCATE)
AND:
1. B.N.ANANDAPPA
S/O B.N.NAGAPPA
AGED ABOUT 68 YEARS
LINEMAN,
WORKING AT MESCOM
BIRUR, BIRUR HOBLI
KADUR TLAUK
CHIKMAGALUR DISTRICT-577548. ... RESPONDENT
(BY SRI VIKAS M., ADVOCATE)
2
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGEMENT AND DECREE DATED 15.12.2017
PASSED IN R.A.NO.21/2014 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND PRINCIPAL JMFC, TARIKERE, ALLOWING THE
APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE
DATED 06.06.2014 PASSED IN O.S.NO.120/2009 ON THE FILE
OF THE CIVIL JUDGE AND ADDITIONAL JMFC, TARIKERE.
THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 01.07.2024 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellants and learned
counsel for the respondent.
2. This second appeal is filed against the divergent
finding of the First Appellate Court in R.A.No.21/2014 dated
15.12.2017 on the file of the Senior Civil Judge and Principal
J.M.F.C., Tarikere reversing the judgment and decree passed by
the Trial Court in O.S.No.120/2009 dated 06.06.2014 on the file
of the Civil Judge and Additional J.M.J.C. at Tarikere.
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 is that he has purchased the suit schedule site
and Mangalore tiled house from its previous owner
Smt. Rajamma and her two sons for valid consideration of
Rs.25,000/-. Originally, the suit schedule property belongs to
Bettadahalli Mandal Panchayath and the assessment number of
the suit schedule property was 119, Janger No.118 and
measured 60 x 40 ft. Thereafter, the suit schedule property has
come under the control of Municipality and the Municipality has
given a new assessment number 6679/119 in respect of the suit
schedule property. It is also the contention of the plaintiff that,
on the date of registration of the sale deed, he has obtained the
possession of the suit schedule property. Since then, he is in
lawful possession and enjoyment of the suit schedule property
without any disturbance by the defendants and any other
persons. It is also the contention of the plaintiff that his vendor
Smt. Rajamma has obtained loan from the Government under
Janatha Scheme and has constructed a Mangalore tiled house
measuring 10 x 10 ft. Further, he has cleared loan to the
Government dated 17.07.1993. It is contended that the
defendants have no right, title or interest and possession over
the suit schedule property and made an attempt to trespass into
the suit schedule property and the defendants being powerful
persons, colluding with the Secretary of Bettadahalli Mandal
Panchayath has obtained fake Assessment Extract and in order
to harass him, intentionally trespassed into the suit schedule
property and based on the same, claiming the right and illegal
activities of the defendants was resisted by him with help of his
friends and relatives and without the assistance of this Court, he
is unable to prevent the same. Hence, filed the suit.
5. In pursuance of the suit summons, the defendants
appeared and filed the written statement and specifically denied
the case of the plaintiff and contend that previous owner
Rajamma was not having any sites. The plaintiff has created a
fake sale deed without having possession from previous owner.
It is contended that one Somanna, his wife and children were
site less and houseless. Therefore, they constructed a hut in the
property bearing No.103 of Bettadahalli Mandal Panchayath.
The Bettadahalli Mandal Panchayath recognized their long
possession by receiving the prescribed fee and entered their
name in the Panchayath document. After the change of
administrative jurisdiction, Municipality has also entered their
name under Assessment Extract bearing number 103/6645
measuring 25 x 40 ft. Since 10 years, they are in possession
and enjoyment of the said property and have constructed a
house in 20 x 20 ft. by spending a sum of Rs.2,00,000/-.
Further, they have obtained electricity connection to the said
house and their parents are residing in the said house. The
defendants have also given the boundaries and description of the
property which they are in possession and constructed the house
and also contend that they have also fenced their property by
stone pillars with barbed wire fence. It is contended that the
plaintiff is claiming right without possession. Hence, the suit is
not maintainable.
6. The Trial Court, based on the pleadings of the
parties, formulated the following issues:
"1) Whether the plaintiff proves that, he is the
absolute owner to the suit schedule property
by virtue of registered sale deed?
2) Whether the plaintiff further proves that, he is
in lawful possession of the suit schedule
property as on the date of the filing of the suit?
3) Whether the plaintiff further proves that
defendants made interference to the suit
schedule property?
4) Whether the plaintiff is entitled for relief as
sought for?
5) What order or decree?"
7. The plaintiff, in order to substantiate his case,
examined himself as P.W.1 and examined one witness as P.W.2
and got marked the documents as Exs.P1 to P12. On the other
hand, the defendants examined 2nd defendant as D.W.1 and
examined two witnesses as D.Ws.2 and 3 and got marked the
documents as Exs.D1 to D30.
8. The Trial Court, having considered both oral and
documentary evidence placed on record, answered all the issues
as 'negative', in coming to the conclusion that the plaintiff has
not produced any document, except the document of Ex.P1 and
Ex.P10 i.e., the sale deed and copy of assessment and also
taken note of the documents produced by the defendants and
comes to the conclusion that the defendants have not placed any
cogent material before the Court in respect of acquisition of
property bearing Assessment No.6645/103 measuring 25 x 40 ft.
Therefore, the title of the defendants in respect of the said
property is not taken into consideration as it is outside the
purview of this suit. It is also an observation that from the
averments made in the affidavit filed by way of examination-in-
chief of P.W.2, even the father of the 1st defendant was also
having a site measuring 25 x 40 ft. bearing Assessment
No.103/1. However, the plaintiff has not whispered anything
about his father either in the plaint averments or during the
course of evidence and also taken note of the fact that P.W.2
during the course of cross-examination has deposed that the
plaintiff is residing in the suit schedule property with his wife and
children. Further, he has admitted that, he has not seen the title
deed issued by Bettadahalli Mandal Panchayath to Rajamma.
Further, he has also admitted that, he is not aware of the
allotment of site by Bettadahalli Mandal Panchayath to Rajamma
and she is the owner of the suit schedule property. It is also an
observation that the vendor of the plaintiff is a better person to
given evidence regarding the property which they had sold to the
plaintiff as per Ex.P1 and plaintiff has not made any attempt to
examine his vendor for the reasons best known to him and also
not established the possession over the suit schedule property
and unless the possession is established, the question of
interference does not arise.
9. Being aggrieved by the said judgment and decree
passed by the Trial Court, an appeal is filed before the First
Appellate Court in R.A.No.21/2014 and the First Appellate Court
taking note of the grounds urged in the appeal memo,
formulated the point whether the appellant proves that judgment
and decree of the Trial Court is erroneous, opposed to law and
facts and evidence on record and on reassessing the evidence
available on record, comes to the conclusion that the Trial Court
has committed an error in coming to the conclusion that the
plaintiff has not proved the title, except producing the document
of Ex.P1-sale deed dated 12.08.1993 and comes to the
conclusion that it clearly discloses that Rajamma and her sons
have executed the sale deed and also taken note of boundaries
and transfer of property in M.R.No.23/95-96 and also taken note
of the documents at Exs.P3 to P9 which shows that the plaintiff
has paid the tax of the suit schedule property. The defendants
only relied upon the House Tax Register Extract which shows
that the defendant No.1 has paid necessary tax to the
Municipality for Assessment No.6645/103 and claim of the
plaintiff and the defendants are different.
10. The First Appellate Court also made an observation
that on perusal of the documents furnished by the defendants,
the boundaries and the property of the defendants are different.
The plaintiff has produced the sale deed and boundaries also and
the same tallies with the plaint and so also with the Assessment
Register Extract issued by the Village Panchayath, Bettadahalli.
It is observed that evidence of P.W.1 is corroborated by the
documentary evidence. On the other hand, the contention of the
defendants is that plaintiff has no right, title or interest over the
property which the defendants are claiming right and the
defendants have also not furnished any material before the
Court in respect of acquisition of the property which they are
claiming. The First Appellate Court observed that when the
plaintiff has furnished the original sale deed and House Tax
Register Extract to prove that his vendor was owner of the said
property, the previous owner of the property has to challenge
the sale deed and the previous owner has not challenged the
sale deed and the finding of the Trial Court that vendor has not
been examined is not a correct approach when the sale deed
itself is produced before the Court.
11. The defendants have also not furnished any
documents to show that Panchayath has granted the suit
property to the 1st defendant and when there is no claim by the
defendants in respect of the suit schedule property and they
claim the right in respect of the different property, it is clear that
suit schedule property and property given to the father of the 1st
defendant are different properties. Hence, the First Appellate
Court reversed the findings of the Trial Court and declared that
the plaintiff is the absolute owner of the suit schedule property
and granted the relief of permanent injunction. Being aggrieved
by the judgment and decree of the First Appellate Court, the
present second appeal is filed before this Court.
12. The main contention urged by the learned counsel
for the appellants/defendants in the second appeal is that the
very conclusion arrived by the First Appellate Court that the
plaintiff has proved his title and interference by the defendants
over the suit schedule property is erroneous and the learned 1st
Appellate Judge failed to appreciate that the property claimed by
the plaintiff was totally different and distinct to the property
owned by the appellant herein. As such, the conclusion arrived
at by the learned 1st Appellate Judge is liable to be interfered. It
is also contended in the appeal that the Trial Court committed an
error in recognizing the sale deed and only based on the sale
deed, coming to the conclusion that plaintiff has proved his title
over the suit schedule property without examining whether the
vendor of the plaintiff was having right over the suit schedule
property is erroneous and failed to consider the documents at
Exs.D1 to D30 to prove the fact that the appellants had right
over the property in question.
13. Having considered the grounds urged in the appeal,
this Court has framed the substantial questions of law vide order
dated 05.06.2018 which reads as hereunder:
" (i) Whether the Lower Appellate Court was
justified in holding that the plaintiff has proved
his title over the suit schedule property only on
the basis of the Sale Deed dated 12.08.1993,
while the trial Court had held that there was no
other documentary evidence to support the
title of the plaintiff?
(ii) Whether the Lower Appellate Court was
justified in disregarding the documents Exs.D1
to D30 which proved the title of the defendants
over the suit schedule property?"
14. Learned counsel for the appellants/defendants in his
argument would vehemently contend that suit is filed for the
relief of declaration and injunction and the First Appellate Court
dismissed the suit on the ground that the plaintiff has failed to
prove his title, but the Trial Court committed an error and there
is a divergent finding. The very claim of the plaintiff herein is
that he purchased the property from one Rajamma and no
doubt, sale deed is also relied upon which is marked as Ex.P1,
no other documents are produced except the documents at
Exs.P2 to P12 which are Tax Assessment List, Self Assessment
Tax, copy of assessment and certified copy of plaint in
O.S.No.393/2012 and contend that he constructed the house,
obtained the electricity connection and is also paying the tax and
nothing is placed on record, except the tax paid receipts in
respect of the tax paid by the plaintiff. On the other hand, the
defendants have produced electricity bills and Ex.D16-Certificate
issued by the Chief Officer, Tarikere and suit is filed immediately
after 15 days of Self-assessment and though the plaintiff has not
proved the possession and title, the First Appellate Court
reversed the judgment of the Trial Court and the same is an
erroneous approach and failed to consider the documents at
Exs.D1 to D30 which proves the possession of the defendants.
15. Per contra, learned counsel for the
respondent/plaintiff in his argument would vehemently contend
that in the plaint and sale deed, boundaries are furnished in
respect of the suit schedule property and property which the
defendants claim is different and observation made by the First
Appellate Court in Paragraph No.23 of the judgment is erroneous
and the reasoning given by the First Appellate Court in
Paragraph Nos.23 and 24 is against the material on record. The
plaintiff relies upon Ex.P10 i.e., copy of assessment which clearly
proves the case of the plaintiff that property is assessed for tax
and also paid the tax. The learned counsel would vehemently
contend that Ex.D1 which is filed before the Trial Court by the
defendants is in respect of property bearing No.6645/103 and
plaintiff claim is in respect of property bearing No.6679/119.
Learned counsel would vehemently contend that they are two
different properties and the plaintiff also proved the boundaries
by producing the documents though not produced title of vendor
and made out a case for granting the relief of declaration and
injunction by producing the documents. Hence, it does not
require any interference, since the First Appellate Court
reassessed both oral and documentary evidence available on
record, particularly relying upon the sale deed.
16. In reply to the arguments of the learned counsel for
the respondent / plaintiff, learned counsel for the appellants /
defendants would vehemently contend that the properties which
the plaintiff and the defendants are claiming are not distinct
properties as observed by the First Appellate Court and an
attempt was made to take possession by the plaintiff, since the
document at Exs.D1 to D30 establishes the fact that the
possession is with the defendants and even photographs are also
produced that the defendants are in possession of the property.
Hence, it requires interference of this Court, since the
documents at Exs.D1 to D30 are not properly appreciated by the
First Appellate Court.
17. Having considered the grounds urged in the second
appeal as well as the oral submissions of the respective counsels
during the course of arguments and also keeping in view the
substantial questions of law framed by this Court, this Court has
to re-analyze the material available on record, since there is a
divergent finding, including the evidence of both the parties i.e.,
oral and documentary evidence.
18. Having considered the submissions of respective
counsels and also taking note of the averments of the plaint, it is
clear that plaintiff had purchased the property from one
Rajamma for a sale consideration of Rs.25,000/- and the said
property originally belongs to Bettadahalli Mandal Panchayath
and Assessment number of the said property is 119 and Janger
number is 118 measuring 60 x 40 ft. It is the claim of the
plaintiff that later on, suit property came under the control of
Municipality and they have given New Assessment No.6679/119
and from the date of purchase of property, the plaintiff is in
possession and contend that construction was made and loan
was obtained by the vendor and the same was cleared by the
plaintiff. But, the defendants are not having any right in respect
of the suit schedule property.
19. This Court would like to extract the schedule of the
property mentioned in the suit to which the plaintiff is claiming
right which reads as follows:
"SCHEDULE
The house and vacant site situated at Galihalli
Village, Kasaba Hobli, Tarikere Taluk, Old Asst.
No.119, Janjar No.118, and New Number given by
the Municipal Authority of Tarikere in Asst.
No.6679/119 measuring 60 x 40 bounded by:
East : Road
West : Kere Angala and Halla
North : House of Venkatappa
South : House of Venkateshwara"
20. Per contra, it is the contention of the defendants that
the plaintiff has created a fake sale deed without showing the
possession of the previous owner and the previous owner was
not having any title in respect of the said site. It is contended
that one Somanna, his wife and children were site less and
houseless and they constructed a hut in the property bearing
No.103 of Bettadahalli Mandal Panchayath. The Bettadahali
Mandal Panchayath recognized their long possession by receiving
the prescribed fee and entered their name in the Panchayath
document and the property also came to the jurisdiction of
Municipality and Municipality has assigned Assessment
No.103/6645 measuring 25 x 40 ft. and they claim that they are
in possession from the last 10 years and also constructed a
house 20 x 20 ft. by spending a sum of Rs.2,00,000/-.
21. This Court also would like to extract the boundaries
of the property to which the defendants are claiming right which
reads as follows:
"Property bearing Assessment No.103/6645
measuring 25 x 40 ft.
East : Road
West : Government Land and Halla
North : Half constructed house
of Hanumanthamma
South : Property of Venkatappa"
22. Having considered the boundaries mentioned by both
the plaintiff and the defendants, the plaintiff and the defendants
claim that towards East of their property, there is a road. The
plaintiff claims that towards West of his property, there is Kere
Angala and Halla and the defendants claim that there is a
Government Land and Halla and both the boundaries of the
property of the plaintiff and the defendants towards East and
West tallies with each. But, the plaintiff claims that towards
North of his property, there is property of Venkatappa, but the
defendants claim that towards North of their property there is
half constructed house of Hanumanthappa. Further, towards
South of his property there is house of Venkateshwara and the
defendants claim that towards South of their property, there is
property of Venkatappa. Hence, the boundaries given by the
plaintiff and the defendants in respect of their property i.e.,
North and South shows that the properties are different
properties. It is also important to note that the claim in respect
of the plaintiff is in respect of property bearing No.6679/119 and
the same tallies with Bettadahalli Mandal Panchayath
Assessment No.119 and measurement is 60 x 40 ft. and the
defendants claim property bearing No.103 of Bettadahalli Mandal
Panchayath and the same was given Assessment No.103/6645
by Municipality.
23. It is also important to note that plaintiff claims that
total measurement of his property is 60 x 40 ft. and the
defendants' claim is in respect of 25 x 40 ft. and measurement is
also different. With regard to the identity of the property,
whether both of them are claiming the very same property,
there is no material on record. It is important to note that
having considered the pleadings of both the parties, both the
parties claim original title from Bettadahalli Mandal Panchayath.
But, both the plaintiff and the defendants have not produced any
documents to prove the fact that the said property was allotted
by Bettadahalli Mandal Panchayath in favour of the vendor of the
plaintiff. It is also the claim of the defendants that one Somanna,
his wife and children were site less and houseless and they
constructed a hut in the property and their possession was
recognized by receiving prescribed fee and the Municipality
entered their name in the Panchayath document and both the
plaintiff and the defendants claim that their name is entered in
the Panchayath document and there is no basis for entering their
name in the Panchayath document.
24. Apart from that, with regard to the allotment of the
property in favour of either the plaintiff or the defendants, no
material is placed before the Court. The plaintiff claims title on
the basis of the title deed executed by one Rajamma and
plaintiff admits that he is not aware of title of vendor of
Rajamma and no title deed of Rajamma is placed before the
Court. Hence, either there must be allotment of property by the
Mandal Panchayath in favour of Rajamma and also in favour of
the defendants and both the parties rely upon the document of
Ex.P10 i.e., the copy of assessment issued by the Municipality
and the property came to the Municipality from the Bettadahalli
Mandal Panchayath. The defendants also rely upon the copy of
assessment at Ex.D1 and the defendants also not produced any
title deed. Further, the plaintiff has not made either the
Bettadahalli Mandal Panchayath or the Municipality as party to
the proceedings and it is the claim that property originally
belongs to Municipality and the same comes within the purview
of the Municipality and hence, the plaintiff ought to have made
them as party to the proceedings, but not made them as party.
25. It is also important to note that entries are made in
Bettadahalli Mandal Panchayath and with regard to what is the
basis for entries in the Mandal Panchayath of Bettadahalli and
also Municipality records, nothing is on record. First of all, the
assessment is also in respect of different properties and I have
already pointed out that boundaries mentioned by the plaintiff
and the defendants are different in respect of North and South
and measurement is also different. First it has to be identified
whether boundaries shown by the plaintiff and the defendants in
respect of North and South of their property are one and the
same and is there any other property. Having taken note of the
boundaries and also mentioning of different assessment claimed
by the defendants and the plaintiff, the First Appellate Court
comes to the conclusion that both are different properties and
mere mention of different property assessment number is not a
ground to come to a conclusion that it is a different property.
26. No doubt, the defendants also produced Exs.D1 to
D30 and mere production of number of documents is not enough
and possession has to be proved and for establishing the
possession, there must be documents and no such document is
placed before the Court. When such materials are not found, it
is a fit case to remand the matter for identification of the
property claimed by the plaintiff and the defendants. It is also
appropriate to make the Mandal Panchayath and Municipality as
parties to the proceedings and even if they are not made as
parties to the proceedings, the parties ought to have summoned
the officials from the Bettadahalli Mandal Panchayath and
Municipality to verify as to what is the basis for entering the
names of plaintiff and the defendants in the Panchayath
documents without ascertaining the title of the parties. The
plaintiff also not established the title of the vendor of the
plaintiff, since the plaintiff is claiming the relief of declaration
and permanent injunction. Hence, the property has to be
identified and then, the Court has to take note of the title of the
parties which they claim. Therefore, it is appropriate to remand
the matter for consideration afresh and hence, I answer the
substantial questions of law accordingly.
27. In view of the discussion made above, I pass the
following:
ORDER
(i) The regular second appeal is allowed.
(ii) The judgment and decree passed by the First
Appellate Court in R.A.No.21/2014 dated
15.12.2017 reversing the judgment and
decree passed by the Trial Court in
O.S.No.120/2009 dated 06.06.2014,
are hereby set aside and matter is remanded
to the Trial Court for consideration afresh in
the light of the observations made
hereinabove.
(iii) The parties and their respective counsels are
directed to appear before the Trial Court on
05.08.2024. Since, the suit is of the year
2009 and the same is almost 15 years old, it
is appropriate to dispose of the same within
six months from 05.08.2024.
(iv) The parties are directed to appear before the
Trial Court without expecting any notice from
the Trial Court. The respective counsels are
also directed to assist the Trial Court in
disposal of the case as stipulated.
(v) The Registry is directed to send the records
to the Trial Court forthwith, to enable the
Trial Court to take up the matter on
05.08.2024.
Sd/-
JUDGE
ST
