Karnataka High Court
Shivashankar S/O Nagalingappa vs Jayanand S/O Shidramappa Kori on 5 June, 2024
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RSA No. 200114 of 2016
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 5TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE Mrs JUSTICE K S HEMALEKHA
REGULAR SECOND APPEAL NO.200114 OF 2016 (POSS)
BETWEEN:
SHIVASHANKAR S/O NAGALINGAPPA
KHYATAPPANAVAR
AGE: 65 YEARS, OCC: BUSINESS,
R/O. KORI CHAWL, STATION BACK ROAD
VIJAYAPUR, NOW AT NEAR A.P.M.C GATE
VIJAYAPUR.
...APPELLANT
(BY SRI VINAYAK APTE, ADVOCATE)
AND:
JAYANAND S/O SHIDRAMAPPA KORI
AGE: 68 YEARS, OCC: BUSINESS,
R/O. NOW RESIDING AT SIDDANARAJANA
Digitally signed GURURAJ COLONY, OPP: ADARSH NAGAR,
by SWETA ASHRAM ROAD, VIJAYAPUR-586 101.
KULKARNI
Location: High
Court of ...RESPONDENT
Karnataka (RESPONDENT SERVED)
THIS RSA IS FILED U/S 100 OF CPC, PRAYING TO SET
ASIDE THE JUDGMENT AND DECREE DATED: 17.12.2015
PASSED BY THE I ADL. DISTRICT JUDGE AT VIJAYAPUR, IN
REGULAR APPEAL NO.197/2012, AND CONSEQUENTLY
DISMISSED THE SUIT OF RESPONDENT.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RSA No. 200114 of 2016
JUDGMENT
The present second appeal by the defendant assailing
the judgment and decree dated 17.12.2015 in
R.A.No.197/2012 on the file of the I-Additional District
Judge, Vijayapur [hereinafter referred to as 'the first
appellate Court' for short], whereby, the first appellate
Court, by the impugned judgment and decree, set aside
the judgment and order dated 07.11.2012 in
O.S.No.243/2006 on the file of the Principal Senior Civil
Judge, Vijayapur [hereinafter referred to as 'the Trial
Court' for short] and decreed the suit of the plaintiff for
possession.
2. The parties are referred to as per their ranking
before the Trial Court for the sake of convenience.
3. Suit for possession in respect of the suit
property consisting of three rooms situated out of CTS
No.1163/1 of Ward No.III of Vijayapur city. The plaintiff
contended that the grand father of the plaintiff Malakappa
purchased the said property in the year 1936 and in the
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partition in the family properties, including the building in
CTS No.1163 during the year 1962, CTS No.1163 was
divided into four parts out of which CTS No.1163/1
consisting of about 14 tenants, godown and open space.
The defendant is in occupation of the suit property since
1978. The father of the plaintiff namely Sidramappa
Malakappa Kori was looking after the property bearing CTS
No.1163/1 and the plaintiff and his father were not in good
terms and there was an agreement, as per the agreement
plaintiff was to manage his family out of agriculture
income and his father was to manage himself and his wife
out of the rent received from the tenants. It is stated that
the mother of the plaintiff predeceased his father and his
father died on 06.04.1999 leaving behind the plaintiff as
the sole legal heir. It is the case of the plaintiff that the
defendant is the tenant of the suit property and filed an
eviction petition in HRC No.5/2000 as the defendant
committed default in payment of rent and so also the suit
property was in a dilapidated condition. Pursuant to the
summons in HRC No.5/2000, the defendant appeared and
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filed written statement contending that the plaintiff's
father had inducted him in the suit property as a tenant.
The suit property was mortgaged in his favour by the
father of the plaintiff taking Rs.4,001/-. The defendant
further contended that during the year 1996 father of the
plaintiff had entered into contract of sale selling the suit
property for a consideration of Rs.90,000/- out of which
Rs.80,000/- has been paid as earnest money to the father
of the plaintiff. The defendant contended that after
payment of the mortgage amount of Rs.4,001/-, he has
been entered into an agreement of sale dated 02.05.1996
and he is in possession of the suit property as prospective
purchaser after redemption of the mortgage.
Subsequently, under HRC No.5/2000, the plaintiff filed
application seeking to withdraw the petition with liberty to
file a suit. Accordingly, the petition was dismissed as
withdrawn.
4. Pursuant to the suit summons, the defendant
appeared and filed his written statement inter alia
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contending that he is in possession of the property as a
mortgagee since 1978 and thereafter as an intending
purchaser from 02.05.1996 having agreed to purchase the
suit property by an agreement of sale and he has paid an
earnest money of Rs.80,000/-. The defendant claims that
he is in possessory title and that the plaintiff is not owner
of the suit property. The suit of the plaintiff is not tenable
and stated that the plaintiff has to file a suit for
declaration of title over the suit property.
5. The Trial Court, on the basis of the pleadings,
framed the following issues:
"ISSUES
1. Whether plaintiff is proves is the owner of the suit
property?
2. Whether plaintiff is entitled to recover possession of suit
property?
3. Whether the plaintiff proves that father of plaintiff has
agreed to sell the suit property on 2.05.1996 under sale
agreement?
4. Whether the suit is bad for non-joinder of necessary
party?
5. Whether the defendant proves that suit is time barred?
6. What order or decree?"
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6. In order to substantiate their claim, the plaintiff
examined himself as PW-1 and got marked documents at
Exs.P-1 to P-7. On the other hand, the defendant
examined himself as DW-1 and two witnesses as DW-2
and DW-3 and got marked documents at Exs.D-1 to D-7.
7. The Trial Court, on the basis of the pleadings,
oral and documentary evidence, arrived at a conclusion
that:
(i) the plaintiff is not entitled for recovery of
possession of the suit property and plaintiff
failed to prove that he is entitled for recovery
of possession of the suit property;
(ii) that there was an agreement of sale executed
by the father of the plaintiff on 02.05.1996
and that the plaintiff has proved that the
father of the plaintiff has agreed to sale the
suit property on 02.05.1996
and by the judgment and decree, dismissed the suit of
the plaintiff.
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8. Aggrieved by the same, the plaintiff preferred
an appeal before the first appellate Court. The first
appellate Court, while re-appreciating the entire oral and
documentary evidence, reversed the judgment and decree
of the Trial Court and held that the plaintiff is entitled for
the decree of possession and set aside the order of the
Trial Court. Aggrieved by the decreetal of the suit of the
plaintiff, the defendant is before this Court.
9. Heard Sri Vinayak Apte, learned counsel
appearing for the appellant. Though the respondent has
been served, he has chosen to remain absent.
10. The challenge before this Court is against the
divergent findings of the courts below. The undisputed
facts are that the father of the plaintiff was owner of the
suit property. The plaintiff having lost in HRC No.5/2000,
has filed present suit for possession from the defendant.
The defendant set up a defence that he is in possession of
the property by way of mortgage and also by way of an
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agreement of sale executed by the plaintiff's father on
02.05.1996. The fact remains that the defendant had also
filed a suit for specific performance of contract based on
an agreement of sale dated 02.05.1996 and the said suit
has been dismissed on 07.11.2012. No appeal has been
preferred against the judgment and decree of the
dismissal of the suit for specific performance. The
possession of the property by way of agreement of sale
does not create any right over the suit property. The
plaintiff, who is the owner of the property, is entitled to
claim possession in accordance with law. The Trial Court
has misdirected itself in arriving at a conclusion that in a
suit for possession, the title of the defendant has been
determined under the agreement of sale, without
considering that, in agreement of sale the party can be in
possession of the property but cannot deprive the actual
owner from taking the possession of the suit property in
accordance with law. The first appellate Court, being the
last fact finding Court, has rightly re-appreciated the
entire oral and documentary evidence and has held that
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there cannot be a possessory title in favour of the
defendant and continue in possession and denying the
legal remedy available to the plaintiff which is by filing of
the present suit. Keeping in mind the proposition of law,
the first appellate Court has rightly reversed the judgment
and decree of the Trial Court and the manner in which the
first appellate Court has dealt with the entire oral and
documentary evidence, this Court is of the considered view
that the same does not warrant any interference by this
Court and no substantial question of law arises for
consideration.
Accordingly, this Court pass the following:
ORDER
(i) The Regular Second appeal is hereby
dismissed.
(ii) The judgment and decree of the first
appellate Court stands confirmed.
Sd/-
JUDGE
SWK
CT: VD
