Karnataka High Court
Sri. V Venkatesh vs Sri N. Venkatachalaiah on 26 June, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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RSA No. 1597 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
REGULAR SECOND APPEAL NO. 1597 OF 2015 (DEC/INJ)
BETWEEN:
SRI. V. VENKATESH,
S/O LATE VENKATARAMAIAH,
AGED ABOUT 47 YEARS,
RESIDING AT ERREGAMATHANAHALLI,
KASABA HOBLI,
MULBAGAL TALUK,
KOLAR DISTRICT - 563 131.
...APPELLANT
(BY SRI. S. VISWESWARAIAH.,ADVOCATE)
AND:
1. SRI N. VENKATACHALAIAH,
S/O N. NARAYAN RAO,
AGED ABOUT 74 YEARS.
Digitally signed
by
NARAYANAPPA 2. SRI. N. CHANDRASHEKAR RAO,
LAKSHMAMMA
Location: HIGH S/O N. NARAYANA RAO,
COURT OF AGED ABOUT 61 YEARS
KARNATAKA
RESPONDENT NOS.1 AND 2 ARE R/AT
ERRAGAMATHANAHALLI VILLAGE,
KASABA HOBLI,
MULBAGAL TALUK,
KOLAR DISTRICT - 563 131.
...RESPONDENTS
(BY SRI. M. V. CHANDRASHEKARA REDDY., ADVOCATE)
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RSA No. 1597 of 2015
THIS RSA IS FILED UNDER SECTION 100 OF CIVIL
PROCEDURE CODE, PRAYING TO CALL FOR RECORDS AND SET
ASIDE THE JUDGMENT AND DECREE PASSED BY THE HON'BLE
PRL. CIVIL JUDGE (JR.DN) AND JMFC AT MULBAGAL IN
O.S.NO.330/1996 DATED 01.09.2009 AND THE JUDGMENT
AND DECREE PASSED BY THE HON'BLE II ADDL. SENIOR CIVIL
JUDGE AND JMFC AT KOLAR(ITINERATING AT MULBAGAL) IN
R.A.NO.193/2009 DATED 28.01.2015 BY ALLOWING THIS
APPEAL AND DISMISSING THE SUIT OF THE APPELLANT AND
ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. The appellant who is defendant No.2 before the Trial
Court in O.S No.330/1996 filed before the Principal
Civil Judge, (Junior Division) and JMFC at Mulbagal,
is before this Court, challenging the concurrent
finding of the Trial Court and the First Appellate
Court seeking for the following reliefs:
Therefore the appellant prays that this
Hon'ble Court be pleased to:
a) Call for records and set aside the
Judgment and decree passed by the
Hon'ble Prl. Civil Judge (Jr.Dn) and JMFC
at Mulbagal in O.S.No.330/1996 dated
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01.09.2009 and the Judgment and decree
passed by the Hon'ble II Addl. Senior Civil
Judge and JMFC at Kolar R.A.No.193/2009
dated 28.01.2015 by allowing this appeal
and dismissing the suit of the Appellant;
b) Grant such other relief/s that this
Hon'ble deems fit in the circumstances of
the case in the interest of justice and
equity.
2. The suit in O.S.No.330/1996 had been filed by the
respondent seeking for declaration, injunction and
possession of the suit schedule properties asserting
their right in terms of the registered sale deed
executed in the year 1944. The defence set up by
defendant No.2 was that the defendant is the owner
of the property and in possession thereof in terms of
unregistered sale deed dated 18.04.1941. The Trial
Court came to a conclusion that the plaintiffs had
established their right, title and interest in terms of
the registered sale deed and further that they had
established their possession until disturbance thereof
in the year 1996 and further came to a conclusion
that the possession which had been illegally taken
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over by the defendant and directed to handover
possession to the plaintiffs.
3. The appellant/defendant No.2 challenged the same in
a regular appeal in R.A.No.193/2009, before the II
Additional Senior Civil Judge, Kolar, itinerating at
Mulbagal, by judgment dated 28.01.2015. The
learned trial judge dismissed the appeal confirming
the judgment and decree passed by the Trial Court in
O.S.No.330/1996, challenging the same, defendant
No.2 is before this Court.
4. Sri.S.Vishweshwaraiah, learned counsel for the
appellant would submit that defendant No.2 has been
in possession of the property from the year 1941
under a unregistered sale deed. This possession
having been continued for a long time, the suit filed
in the year 1996 was completely belated and bound
by the law of limitation. The aspect of possession
ought to have been taken into consideration by the
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Trial Court and the relief for declaration of title was
required to be dismissed.
5. His further submission is that the First Appellate
Court ought to have allowed the application in
IA No.4 under Order 26 Rule 9 R/w 151 of Code of
the Civil Procedure and appointed a Commissioner to
ascertain the existence of houses in the property.
Not having done so has resulted in miscarriage of
justice in the present matter.
6. Having perused the judgment of the Trial Court and
the First Appellate Court, and having heard the
counsel for the appellant, it is clear that the plaintiffs
had asserted the title under an unregistered sale
deed on which basis declaration of title was sought
for. The relief of possession was sought for alleging
that the possession was interfered with and forcible
possession was taken in the year 1996 and the suit
was also filed in the year 1996.
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7. The only claim of defendant No.2 is that there is an
unregistered sale deed of the year 1941, the sale
deed of the plaintiffs being subsequent thereto in the
year 1944 relating to the suit schedule property,
defendant No.2 does not have any title documents in
his favour. The property being an urban property,
possession follows title. The title being established by
way of a registered sale deed which had been
produced by the plaintiffs. The defendant is seeking
to rely upon an unregistered sale deed which does
not confer any right, title or interest. The declarative
relief has been rightly granted by the Trial Court and
confirmed by the First Appellate Court. When
declaration of title has been rightly granted, the
aspect of grant of possession is a natural
consequence which has also been rightly granted by
the Trial Court and the First Appellate Court. The
finding of the Trial Court and the First Appellate
Court being on facts, there is no substantial question
of law which arises in the present matter.
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8. The appeal is dismissed at the stage of admission
itself.
Sd/-
JUDGE
RMS
