Karnataka High Court
Sri Narayanappa vs Sri Lingappa on 26 July, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 1344 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.1344 OF 2018
BETWEEN:
1. SRI NARAYANAPPA
S/O. RAMANA BADIGER,
DEAD BY LRS.
1(a) SMT JAYAMMA,
W/O NARAYANAPPA,
AGED ABOUT 69 YEARS,
R/O ANAVATTI VILLAGE, HOBLI,
SORABA TALUK,
SHIVAMOGGA DISTRICT-577 429.
1(b) SRI MANJAPPA
S/O. NARAYANAPPA,
AGED ABOUT 39 YEARS
Digitally signed R/O ANAVATTI VILLAGE, HOBLI,
by DEVIKA M
Location: HIGH
SORABA TALUK,
COURT OF SHIVAMOGGA DISTRICT-577 429.
KARNATAKA
1(c) SMT YASHODA
W/O KRISHNAPPA,
AGED ABOUT 41 YEARS
R/O SAIDURU VILLAGE,
SAGAR TALUK,
SHIMOGGA DISTRICT-577 429.
2. SRI KRISHNAPPA
S/O RAMANA BADIGER,
AGED ABOUT 78 YEARS
R/O HANGAL-ANAVATTI ROAD,
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RSA No. 1344 of 2018
SORAB TALUK,
SHIMOGGA DISTRICT-577 429.
...APPELLANTS
(BY SRI. VEERENDRA R. PATIL, ADVOCATE)
AND:
1. SRI LINGAPPA
S/O PARAMAPPA,
AGED ABOUT 88 YEARS
2. SRI D. CHANNAPPA
S/O PARAMAPPA,
AGED ABOUT 77 YEARS
BOTH ARE RESIDING AT
SAMANAVALLI VILLAGE,
ANAVATTI HOBLI,
SORABA TALUK,
SHIMOGGA DISTRICT-577 429.
...RESPONDENTS
(BY SRI K. SREEDHAR, ADVOCATE FOR R1 & R2)
THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE
JUDGEMENT AND DECREE DTD: 01.01.2018 PASSED IN
R.A.NO.30/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND JMFC, SORABA, ALLOWING THE APPEAL AND SETTING
ASIDE THE JUDGEMENT AND DECREE DTD: 18.04.2016
PASSED IN O.S.NO.24/2000 ON THE FILE OF THE CIVIL JUDE
AND JMFC., SORABA.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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RSA No. 1344 of 2018
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
ORAL JUDGMENT
Heard the learned counsel for the appellants and the
learned counsel for the respondents.
2. The factual matrix of the case of the plaintiffs
before the Trial Court is that they filed a suit seeking the
relief of possession against the defendants claiming that they
are the absolute owners of the property and the defendants
are the tenants. It is the contention that from 1995 to 1999,
the appellants herein are in arrears of rent at the rate of
Rs.30/- per month and the tenancy was terminated on
16.02.1999. The defendants filed the statement that they
had purchased the suit schedule property on 08.08.1992 from
Basavanthappa. Hence, the Trial Court allowed the parties to
lead the evidence. The defendants also took the contention
that they have perfected the title by way of adverse
possession, since the plaintiffs had lost their right over the
suit schedule property. The Trial Court having considered
both oral and documentary evidence placed on record,
answered point Nos.1 and 2 in the negative and answered
point No.3 as does not survive of consideration and answered
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issue Nos.4, 5 and 6 in the negative and even not accepted
the contention of the defendants for having purchased the
suit schedule property from Basavanthappa and dismissed the
suit. The same was challenged before the First Appellate
Court and the First Appellate Court remanded the matter and
thereafter two additional issues are framed by the Trial Court.
The Trial Court comes to the conclusion that the defendants
have perfected their title by way of adverse possession by
answering additional issue No.1 and the suit is barred by
limitation by answering additional issue No.2. The Trial Court
after the remand also dismissed the suit in coming to the
conclusion that the appellants have perfected their title by
way of adverse possession.
3. Being aggrieved by the dismissal of the suit, an
appeal is filed by the plaintiffs before the First Appellate Court
in R.A.No.30/2016. The First Appellate Court on re-
appreciation of both oral and documentary evidence placed on
record and keeping in view the contentions urged in the
appeal, formulated the points for consideration whether the
Trial Court was justified in holding that the plaintiffs failed to
prove that they were the owners and the defendants were
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tenants under them in respect of the suit schedule property.
Whether the Trial Court was justified in holding that the suit
was barred by limitation and the plaintiffs lost their right over
the suit schedule property under law of adverse possession.
Whether the Trial Court was justified in holding that the
plaintiffs were not entitled for recovery of possession, arrears
of rent and mesne profits and whether the impugned
judgment and decree is perverse, capricious and calls for
interference of this Court. The First Appellate Court answered
point Nos.1 to 3 in the negative and answered the additional
issue that the defendants have perfected their title by way of
adverse possession and the suit is also not barred by
limitation and allowed the appeal and directed the defendants
to vacate the premises and to pay the rent at the rate of
Rs.30/- per month.
4. Being aggrieved by the divergent finding, this
present second appeal is filed before this Court.
5. This Court having considered the grounds urged in
the appeal, vide order dated 25.08.2021, framed the
substantial question of law whether the First Appellate Court
is justified in interfering with issue No.1 in O.S.No.24.2000?
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6. The learned counsel for the appellants would
vehemently contend that the suit schedule property is
purchased by one Basavanthappa, who is the brother of the
plaintiffs' father. The learned counsel contend that when the
property was purchased in the year 1982, the First Appellate
Court cannot come to the conclusion that the sale deed is not
valid. The learned counsel contend that in the absence of any
tenancy receipts, the First Appellate Court ought not to have
reversed the finding of the Trial Court. The very judgment
and decree of the First Appellate Court is erroneous. The
learned counsel contend that fixing of rent at the rate of
Rs.30/- is erroneous without conducting any enquiry and
mesne profits ought to have been decided after the enquiry.
Hence, it requires interference of this Court.
7. Per contra, the learned counsel for the
respondents would contend that it is not in dispute that the
father of the appellants is a tenant under the father of the
respondents herein. There is no dispute with regard to the
fact that partition was taken place among the brothers and in
terms of Ex.P.1 partition deed, eastern portion was allotted in
favour of the father of the plaintiffs, middle portion was
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allotted in favour of Basavanthappa and western portion was
allotted in favour of another brother. The learned counsel
contend that when Basavanthappa was not having any title,
the question of transferring the eastern portion of the
property in favour of the appellants herein does not arise. The
learned counsel contend that both the Courts held that the
sale deed is not valid in respect of the appellants because the
very vendor was not having any title in respect of the eastern
portion. The learned counsel submits that the suit schedule
property is the eastern portion is not in dispute. When such
being the material on record, both the Courts not committed
any error in coming to the conclusion that the sale deed is not
valid, since the vendor is not having any title. The learned
counsel submits that when the tenancy was admitted by the
appellants that earlier they were the tenants in respect of the
eastern portion of the suit schedule property with the father
of the plaintiffs, now cannot contend that they are not the
tenants. Hence, the First Appellate Court re-analyzing the
material on record, comes to the right conclusion and rightly
directed to vacate the premises with a direction to pay the
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rent of Rs.30/- per month as mesne profits. Hence, it does
not require any interference of this Court.
8. Having heard the learned counsel for the
appellants and the learned counsel for the respondents and
also considering the material on record, in terms of the
pleadings of the parties, no dispute that the appellants were
the tenants under the father of the plaintiffs and also the
registered document of partition deed is also placed before
the Court. In terms of the partition deed, the eastern portion
was allotted to the father of the plaintiffs and middle portion
was allotted in favour of Basavanthappa and western portion
was allotted in favour of another brother. The very
contention of the learned counsel for the appellants is that
they had purchased the eastern portion of the property in
which they were tenants earlier and consequent upon the sale
deed of the year 1982, they became the owners. It is
important to note that they also pleaded that they were the
owners and also contend that they have perfected their title
by way of adverse possession. It is important to note that
when once they contend that they are the owners, they
cannot contend that they have perfected their title by way of
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adverse possession. They cannot blow hot and cold. In one
breath claiming that they are the owners and in another
breath claiming that they have perfected the title by way of
adverse possession.
9. It is not in dispute that in terms of Ex.P.1 when
the eastern portion was allotted in favour of the plaintiffs'
father and his uncle Basavanthappa cannot sell the property
of the eastern portion and even if any sale is made in favour
of the appellants father, that will not convey any better title,
since when the vendor was not having any better title in
respect of the eastern portion, the question of conveying any
ownership in favour of the appellants father does not arise.
Having taken note of the said fact into consideration, both the
Courts comes to the conclusion that the sale deed does not
convey any valid title in favour of appellant No.1. However,
the Trial Court committed an error in coming to the
conclusion that he has perfected the title by way of adverse
possession. I have already pointed out that once he claims
that he is the owner, he cannot claim that he has perfected
the title by way of adverse possession. The Trial Court lost
sight of the appreciation of the material on record and the
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very finding of the Trial Court is erroneous and hence the
First Appellate Court having re-assessed the material on
record, comes to the conclusion that the question of claiming
adverse possession does not arise. The First Appellate Court
having re-assessed the material on record also taken note of
the sale deed of the year 1982 and rightly comes to the
conclusion that the same does not convey any title. It is also
important to note that there are no any rental receipts, but
the fact that the appellants are the tenants of the plaintiffs
father is not in dispute. It is categorically admitted in the
written statement that earlier they were the tenants and
when the subsequent sale deed does not convey any better
title, the relationship between the plaintiffs and the
defendants that they are the owners and tenants will not
extinguish and the said relationship will continue. The very
claim of the plaintiffs while seeking the mesne profits is only
for a particular period for which they have not paid the rent.
When such being the claim and when the appellants have not
got any title in respect of the suit schedule property, the First
Appellate Court rightly having taken note of the admission
that earlier they were the tenants, rightly granted the relief of
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Rs.30/- per month as mesne profits, since the earlier lease
agreement was of the year 1951 and at that time, the rent is
only Rs.10/- per month. While granting the relief, the First
Appellate Court only granted an amount of Rs.30/- per month
and reversed the finding of the Trial Court by answering issue
No.1 that they are the owners and having admitted the
relationship of tenancy earlier, the appellants become the
tenants and their right cannot be treated as they are the
owners when the very vendor was not having any title in
respect of the property, which was conveyed in favour of the
appellants. Hence, I do not find any error committed by the
First Appellate Court while reversing the finding of the Trial
Court in respect of issue No.1 and hence the First Appellate
Court is justified in interfering with the issue No.1 in
O.S.No.24/2000 and hence I do not find any merit in the
appeal to come to other conclusion. Hence, I answer the
substantial question of law in the affirmative that the First
Appellate Court is justified in interfering with issue No.1 of
O.S.No.24/2000 and not committed any error by appreciating
the material on record.
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10. In view of the discussions made above, I pass the
following:
ORDER
The second appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
MD
