Karnataka High Court
Nanjundappa G S Dead By Lrs vs Late Buramuddin Sab on 6 March, 2024
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RSA No. 780 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 780 OF 2014 (DEC)
BETWEEN:
1. NANJUNDAPPA G.S.,
DEAD BY LRS.
1(A). G.N. NAGESHAPPA,
S/O LATE NAJUNDAPPA G.S.,
AGE-71, AGRICULTURE,
1(B). G.N. CHANDAPPA,
S/O. LATE NANJUNDAPPA G.S.,
AGE: 68, AGRICULTURE,
1(C). G.N. NIJALINGAPPA,
S/O. LATE NANJUNDAPPA G.S,
AGE: 63, AGRICULTURE,
Digitally signed
by R DEEPA
Location:
ALL ARE R/O GIRIYAPUR VILLAGE,
HIGH COURT HIRENALLUR HOBLI,
OF TALUK KADUR, DIST:CHIKMAGALORE.
KARNATAKA
...APPELLANTS
(BY SRI. K.N. DAYALU, ADVOCATE)
AND:
LATE BURAMUDDIN SAB,
S/O. BUDANASAB,
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RSA No. 780 of 2014
1. HUSSAIN BEIG,
S/O USMAN BEIG,
AGE:73, BUSINESS,
R/O. KODI CAMP, TARIKERE,
DIST: CHIKAMAGALUR.
KHALANDAR BEIG,
S/O. USMAN BEIG,
DEAD BY LRS,
2. RAHAMATH UNNISA,
W/O LATE KHALNADAR BEIG,
AGE: 80 YEARS, HOUSE HOLD.
3. BHAKSHI,
S/O. LATE KHALANDAR BEIG,
AGE:53, BUSINESS,
4. AKRAM,
S/O. LATE KHALANDAR BEIG,
AGE:48 YEARS, BUSINESS,
5. ASLAM,
S/O. LATE KHALANDAR BEIG,
AGE:43 YEARS, BUSINESS,
6. ANJUM,
S/O. LATE KHALANDAR BEIG,
AGE:40 YEARS, BUSINESS,
7. AFSAR PASHA,
S/O. LATE KHALANDAR BEIG,
AGE: 35 YEARS, BUSINESS,
9. HASEENA,
D/O. LATE KHALANDAR BEIG,
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RSA No. 780 of 2014
AGE: 31, HOUSEHOLD,
9. RHIYANA,
D/O. LATE KHALANDAR BEIG,
AGE: 27, HOUSEHOLD,
ALL R/O KHAZI MOHALLA,
KHANDERAO KOPPALU,
OLD TOWN, BHADRAVATHI.
...RESPONDENTS
(BY SRI. R. SRINIVASA GOWDA, ADVOCATE FOR R1;
MISS. NITYA V, ADVOCATE FOR
SRI. PRAKASH M.H, ADVOCATE FOR R7;
VIDE ORDR DATED 25.02.2019, VAKALAT BY MR. PRAKASH
M.H ON BEHALF OF R5, R6, R8 AND R9 IS REJECTED)
THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE
JUDGEMENT & DECREE DATED 28.02.2014 PASSED IN
R.A.NO.34/2008 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND PRINCIPAL JMFC, TARIKERE, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGEMENT AND DECREE DATED
16.06.2008 PASSED IN OS.NO.213/2001 ON THE FILE OF THE
CIVIL JUDGE (JR.DN) AND ADDITIONAL JMFC, TARIKERE.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RSA No. 780 of 2014
JUDGMENT
This second appeal is filed by the appellant
challenging the judgment and decree dated 28.02.2014,
passed in R.A.No.34/2008 by the Senior Civil Judge and
Principal J.M.F.C, Tarikere, confirming the judgment and
decree dated 16.06.2008 passed in O.S.No.213/2001 by
the Civil Judge(Jr.Dn) and Addl. J.M.F.C, Tarikere.
2. For the sake of convenience, parties are referred
to as per their ranking before the trial Court. The
appellants are the LR's of plaintiff and respondents are the
defendants. Plaintiffs filed suit for declaration of title and
possession against the defendants.
3. The brief facts leading rise to filing of this appeal
are as under:
It is the case of the original plaintiff that, plaintiff is
the absolute owner of the suit schedule property, as he
had purchased the said land from defendant No.1 under
the registered sale deed dated 18.10.1969 for valuable
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consideration of Rs.8,000/-. It is contended that the said
land was granted in favour of defendant No.1, defendant
No.1 in turn had sold the said land in favour of father of
the plaintiff. It is the case of the plaintiff that, when he
went to plough the suit schedule property under the
season for 1968-69. Defendant No.3 obstructed him from
ploughing, alleging that he was lessee under defendant
No.2. It is a further case of the plaintiff that, defendant
No.3 filed a suit in O.S No.140/1969 on the file of Civil
Court Tarikere, against the plaintiff and defendant No.2 for
permanent injunction, the said suit was decreed vide
judgment dated 29.02.1972. An appeal was filed against
the judgment and decree passed in O.S No.140/1969, in
R.A No.23/1972 on the file of Civil Judge, Chikkamagaluru.
The said appeal was dismissed. After the dismissal of
appeal in R.A No.23/1972, the plaintiff filed the present
suit seeking for a declaration of title and possession of suit
schedule property from defendant No.3 and mesne profit.
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4. Defendant No.1 has filed written statement
admitting the fact that he had purchased the said land
from defendant No.2 and sold the same in favour of father
of plaintiff under a registered sale deed dated 18.10.1969
for consideration of Rs.8,000/-. It is further contended
that the plaintiff's father and defendant No.3 have colluded
together to create some right of tenancy in the name
defendant No.3, to cause the loss and injury to him. It is
contended that defendant No.1 has no objection to decree
the suit of the plaintiffs for relief of declaration of title and
mesne profit.
5. Defendant No.2 filed written statement
contending that the suit schedule land was granted to him
by Tahasildar vide order dated 30.03.1957, with a non
alienation clause prohibiting him from alienating the suit
schedule property for a period of 15 years. It is contended
that the sale deed executed by defendant No.2 in favour of
defendant No.1 was sham transaction and never acted
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upon and possession was never delivered in favour of
defendant No.1.
6. It is contended that during the pendency of the
suit, defendant No.3 filed an application for confirmation of
tenancy rights before the Land Tribunal and the Land
Tribunal after holding the due enquiry, gave a finding that
granted land was already forfeited to the Government for
violation of conditions of grant order, it cannot be granted
in favour of defendant No.3 and plaintiff's father being one
of the party in proceedings before the Land Tribunal have
not challenged the findings recorded by the Land Tribunal
and the said finding has attained the finality and it is
contended that the plaintiffs are not entitle for relief of
declaration of title and possession. Hence, prays to
dismiss the suit.
7. Defendant No.3 filed a written statement
denying the averments made in the plaint and it is also
denied that the plaintiffs father had purchased the suit
land from defendant No.1 under the registered sale deed
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dated 18.10.1969 for consideration and also denied that
defendant No.1 delivered the possession of the suit
schedule property in favour of the plaintiff's father. It is
contended that the plaintiff has no right, title, possession
or interest over the suit schedule property. It is
contended that defendant No.3 filed suit in O.S
No.140/1969 against the plaintiff and defendant No.2 for
relief of permanent injunction and the said suit was
decreed.
8. It is admitted that plaintiff aggrieved by the
judgment and decree preferred an appeal in R.A
No.23/1972, which was dismissed. Defendant No.3
contended that he is in possession and enjoyment of the
suit schedule property for long time and the said land was
resumed in favour of Government, as there was violation
of conditions mentioned in the grant order. Thus, the
plaintiffs are not entitle for relief of declaration of title and
recovery of possession and prays to dismiss the suit.
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9. During the pendency of the suit plaintiff and
defendant No.3 died living behind their legal
representatives and their legal representatives were
brought on record.
10. The trial Court on the basis of pleadings of the
parties framed the following issues and additional issues.
"1. Whether the plaintiff proves that the 3rd
defendant objected to the possession of the
plaintiff after the sale and thereafter
obtained permanent injunction against the
plaintiff ?
2. Whether the plaintiff proves that the 1st
defendant is liable to give possession or in
the alternative to refund Rs.8,800/- with
interest @ 12% per annum?
3. Whether the 1st defendant is not liable to
pay any amount or mesne profits in the
event of holding that the 3rd defendant is in
possession of the property as tenant?
4. To what relief is the plaintiff entitled ?"
Additional issue:
"1. Whether the defendant No.III was a tenant
of the schedule property on the date of the
sale of the suit property i.e. on 18.10.1969
in favour of the plaintiff?"
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Additional issues :
1. "Whether the plaintiff proves that he is the
absolute owner of the suit schedule
property?
2. Whether the defendant No.1 proves that he
has delivered the possession of the suit
schedule property to the plaintiff by virtue
of the sale deed dated 18.10.1969?
3. Whether the 2nd defendant proves that the
sale deed executed by him in favour of 1st
defendant is only a sham transaction?
4. Whether the 2nd defendant proves that the
suit is barred by Law of Limitation ?
5. Whether the 2nd and 3rd defendants prove
that the suit is bad for non joinder of
necessary parties and mis joinder of
unnecessary parties?
6. Whether the 2nd and 3rd defendants prove
that Land Tribunal has forfeited the suit
schedule property for violation of conditions
of grant?
7. Whether the plaintiff is entitled for mesne
profits?
8. Whether the plaintiff is entitled for the
reliefs sought for?
9. What decree or order?"
11. The LR's of plaintiff in order to substantiate
their case, one of the LR's of original plaintiff was
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examined as PW1 and examined 2 witnesses as PW2 and
PW3 and got marked 11 documents as Ex.P1 to P11. In
rebuttal, defendant No.2 examined himself as DW1 and
one of the legal representatives of defendant No.3 was
examined as DW2 and got marked 3 documents as Ex.D1
to D3.
12. The trial court after recording the evidence and
on the assessment of oral and documentary evidence
answered issue Nos.1 to 4 in the Negative, additional
issues framed on 17.06.1982 answered in the Negative,
additional issue framed on 30.05.2006 answered issue
Nos.1, 3, 4, 7 and 8 in the Negative, additional issue
Nos.5 and 6 answered in the affirmative and additional
issue No.2 framed on 30.07.2006 deleted as per the order
dated 30.07.2006 and additional issue No.9 as per the
final order. Trial Court dismissed the suit of the plaintiffs
for relief of declaration of title, recovery of possession and
mesne profit.
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13. The plaintiffs aggrieved by the judgment and
decreed passed by the trial Court preferred an appeal in
R.A.No.34/2008.
14. The First appellate Court after hearing the
learned counsel for the parties framed the following points
for consideration:
1. "Whether the appellants/plaintiffs prove their
title to the suit schedule land?
2. Whether the findings and reasoning recorded
or the issues and additional issues framed by
the trial court which culminated in dismissal of
the suit of the plaintiffs for declaration of title,
recovery of possession, mesne profits and in
the alternative for recovery of sale price are
perverse, capricious and thereby required to
be interfered by this court exercising its
appellate jurisdiction?
3. What decree or order?"
15. The First appellate Court, on re-assessment of
oral and documentary evidence, answered point Nos.1 and
2 in the Negative, point No.3 as per the final order. The
appeal of the plaintiffs was dismissed vide judgment dated
28.02.2014, confirming the judgment and decree passed
by the trial Court.
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16. The plaintiffs aggrieved by the judgments and
decrees passed by the Courts below have filed this second
appeal.
17. Heard the learned counsel for the plaintiffs.
18. Learned counsel for the plaintiffs submits that
the Courts below have committed an error in passing the
impugned judgments and he submits that the original
plaintiff is the absolute owner of the suit schedule
property, as he had purchased the said property from
defendant No.1 under the registered sale deed dated
18.10.1969. He submits that the plaintiff is in possession
of the suit schedule property and also submits that the
Government cannot cancel the grant made in favour of
defendant No.2 unilaterally and he submits that the
Government has not resumed the land. Thus, the plaintiff
continued to be in possession of suit schedule property
and defendant No.3 has trespassed into the suit schedule
property.
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19. Further in order to butters his arguments, he
placed reliance on the judgment of Madras High court in
the case of M/s. Latif Estate Line India Ltd Vs Mrs.
Hadeeja Ammal and Others reported in AIR 2011
Madras 66 and also reliance on the judgment of this
Court in the case of Mohd. Hussain Vs State of
Karnataka reported in 1980(1) KLJ Short Note Item
No.167 and Siddaiah Vs Hutchamma reported in
1982(2) KLJ Short Note Item No.28(DB) and also
judgment of Hon'ble Apex Court in the case of Rame
Gowda(dead) by LRs Vs M. Varadappa Naid (dead)
by LRs and Others reported in (2004) 1 SCC 769.
Hence, on these grounds he prays to allow the appeal.
20. Perused the records and considered the
submissions made by the learned counsel for the
plaintiffs.
21. It is clear from the records that suit schedule
property was granted in favour of defendant No 2 on
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30.03.1957. In the said grant order, condition was
mentioned that defendant No.2 shall not alienate the suit
schedule property for a prohibitionary period. Defendant
No.2 violating the second condition mentioned in the grant
order executed a registered sale deed in favour of
defendant No.1. Defendant No.1 in turn has sold the said
land in favour of plaintiff's father under the registered sale
deed dated 18.10.1969 at Ex.P1. The plaintiff's father had
purchased the said land for consideration of Rs.8,000/-.
22. It is the case of the plaintiff that possession of
suit schedule property was delivered to him and he
became the absolute owner in possession of the suit
schedule property. Though, defendant Nos.2 and 3 have
filed written statement contending that defendant No.2
had executed a registered sale deed in favour of defendant
No.1 by contravention of grant rules and further the
Assistant Commissioner vide order dated 08.08.1962
cancelled the grant made in favour of defendant No.2.
The said order was neither challenged by defendant Nos.1,
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2 nor by the plaintiffs. The said order has attended the
finality and in spite of knowing that the grant made in
favour of defendant No.2 was cancelled, defendant No.1
executed a registered sale deed in favour of plaintiff's
father.
23. The plaintiff never acquired any title by virtue
of Ex.P1, as the Assistant Commissioner has already
cancelled the grant made in favour of defendant No.2 and
cancellation order passed by the Assistant Commissioner
has attended the finality. When defendant No.2 himself
has lost his title over the suit schedule property, he had no
right to execute a sale deed in favour of defendant No.1
and further defendant No.1 had no right to execute a
registered sale deed in favour of the plaintiff's father. As
on the date of execution of registered sale deed by
defendant No.1 in favour of defendant No.2, the grant was
already cancelled vide order dated 08.08.1962 and
defendant No.1 executed a registered sale deed in favour
of plaintiff's father dated 18.10.1969, when the vendors of
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the father of plaintiff has lost the title over the suit
schedule property. Further it is settled law that vendor
cannot transfer the title to the vendee better than he
himself possess, principle arising from the latin maxim,
"Nemo dat quod non habet" i.e., 'no one can confer a
better title than what he himself has'. In the present case,
the right of the plaintiff's vendor was denied by the
Assistant Commissioner by passing a cancellation of the
grant vide order dated 08.08.1962. Neither defendant
No.1 nor defendant No.2 get right to convey the same to
their vendee. The said aspect was considered by the
Courts below and have rightly passed the impugned
judgments. Further the judgments relied on by the
learned counsel for the appellants before this Court was
already relied before the first appellate Court. The first
appellate Court considered the citations referred above
and passed impugned judgment. I concur with the
judgments of the Courts below. Hence, I do not find any
substantial question of law that arises for consideration in
this appeal and any error in the impugned judgments.
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24. In view of the above discussion, I proceed to
pass the following:
ORDER
i. Appeal is dismissed.
ii. Judgments and decrees passed by the
Courts below are hereby confirmed.
iii. No order as to costs.
Sd/-
JUDGE
AT
CT: BHK
