Karnataka High Court
Sri Thammaiah Shetty vs Sri G V Ramachandra on 6 November, 2024
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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NC: 2024:KHC:44726
RSA No. 619 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
REGULAR SECOND APPEAL NO. 619 OF 2011 (DEC)
BETWEEN:
1. SRI THAMMAIAH SHETTY
S/O.LATE PAPAIAH SHETTY,
AGED ABOUT 77 YEARS,
R/AT.GURUVAIAHANA KOPPALU,
THAMMADAHALLI POST,
BETTADAPURA HOBLI,
PERIYAPATNA TALUK,
MYSORE DISTRICT - 571 102.
2. SRI KANTHARAJU
S/O.LATE PUTTASWAMY SHETTY,
AGED ABOUT 57 YEARS, R/AT.GURUVAIAHANA
KOPPALU,
THAMMADAHALLI POST,
BETTADAPURA HOBLI,
PERIYAPATNA TALUK,
MYSORE DISTRICT - 571 102.
3. SRI CHANDRA SHETTY
S/O.LATE PUTTASWAMY SHETTY,
Digitally signed by AGED ABOUT 52 YEARS,
ANUSHA V R/AT.GURUVAIAHANA KOPPALU,
Location: High THAMMADAHALLI POST,
Court Of BETTADAPURA HOBLI,
Karnataka PERIYAPATNA TALUK,
MYSORE DISTRICT - 571 102.
4. SRI SANNAPPA SHETTY
S/O.LATE PUTTASWAMY SHETTY,
AGED ABOUT 47 YEARS,
R/AT.GURUVAIAHANA KOPPALU,
THAMMADAHALLI POST,
BETTADAPURA HOBLI,
PERIYAPATNA TALUK,
MYSORE DISTRICT - 571 102.
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RSA No. 619 of 2011
5. SRI KRISHNA SHETTY
S/O.LATE THAMMAIAH SHETTY,
AGED ABOUT 47 YEARS,
R/AT.GURUVAIAHANA KOPPALU,
THAMMADAHALLI POST,
BETTADAPURA HOBLI,
PERIYAPATNA TALUK,
MYSORE DISTRICT - 571 102.
...APPELLANTS
(BY SRI. H C SUNDARESH., ADVOCATE)
AND:
1. SRI G V RAMACHANDRA
S/O LATE. VENKATAPPA SHETTY,
AGED ABOUT 64 YEARS,
R/AT.GURUVAIAHANA KOPPALU,
THAMMADAHALLI POST,
BETTADAPURA HOBLI,
PERIYAPATNA TALUK,
MYSORE DISTRICT - 571 102.
1(A). SMT. KALYANAMMA
W/O LATE. G.V.RAMACHANDRA,
AGED ABOUT 60 YEARS,
R/A GURUVAIAHANA KOPPALU,
THAMMADAHALLI POST,
BETTADAPURA HOBLI,
PERIYAPATNA TALUK,
MYSORE DISTRICT.
1(B). SMT. SAVITHA
D/O LATE. G.V.RAMACHANDRA,
AGED ABOUT 48 YEARS,
R/A GURUVAIAHANA KOPPALU,
THAMMADAHALLI POST,
BETTADAPURA HOBLI,
PERIYAPATNA TALUK,
MYSORE DISTRICT.
1(C). SRI. CHANDRASEHAKR
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RSA No. 619 of 2011
S/O LATE. G.V.RAMACHANDRA,
AGED ABOUT 44 YEARS,
R/A GURUVAIAHANA KOPPALU,
THAMMADAHALLI POST,
BETTADAPURA HOBLI,
PERIYAPATNA TALUK,
MYSORE DISTRICT.
1(D). SRI. GIRISH
S/O LATE. G.V.RAMACHANDRA,
AGED ABOUT 35 YEARS,
R/A GURUVAIAHANA KOPPALU,
THAMMADAHALLI POST,
BETTADAPURA HOBLI,
PERIYAPATNA TALUK,
MYSORE DISTRICT.
1(E). SMT. SUNITH
D/O LATE. G.V.RAMACHANDRA,
AGED ABOUT 30 YEARS,
R/A GURUVAIAHANA KOPPALU,
THAMMADAHALLI POST,
BETTADAPURA HOBLI,
PERIYAPATNA TALUK,
MYSORE DISTRICT.
...RESPONDENTS
(BY SRI. NAGENDRA SHETTY., ADVOCATE FOR R1(A TO E))
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 01.12.2010 PASSED IN
R.A.NO.118/2009 (OLD R.A.NO.16/2006) ON THE FILE OF THE
ADDL. SENIOR CIVIL JUDGE & JMFC,HUNSUR, ALLOWING THE
APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE
DATED: 22.12.2005 PASSED IN O.S.NO.106/1998 ON THE FILE
OF THE CIVIL JUDGE (JR.DN)AND JMFC,PERIYAPATNA.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI
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RSA No. 619 of 2011
ORAL JUDGMENT
Challenging judgment and decree dated 01.12.2010
passed by Additional Senior Civil Judge and JMFC, Hunsur,
sitting at Periyapatna in R.A.no.118/2009 and judgment
and decree dated 22.12.2005 in O.S.no.106/1998 passed
by Civil Judge (Junior Division) and JMFC, Periyapatna,
this appeal is filed.
2. Brief facts as stated are that appellants herein
were defendants in suit filed by respondent/plaintiff for
declaration of title and possession of suit property. In
plaint, it was stated that survey no.11/5, measuring 11
guntas, situated at Thammadahalli village, was suit
property. Plaintiff had become absolute owner of suit
property by virtue of sale deed dated 19.12.1977. It was
stated that from date of purchase, plaintiff was in
possession and enjoyment of suit property. In month of
May, plaintiff was not in station, defendants illegally
dispossessed plaintiff from suit property and illegally
cultivated land. On return to village, plaintiff requested for
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handing back possession. Since same was refused, cause
of action for filing suit had accrued and plaintiff had filed
suit.
3. In suit, defendant no.5 remained ex-parte.
Defendant no.2 filed written statement which was adopted
by defendants no.1, 3 and 4 mainly denying plaint
averments and specifically contending that suit property
was ancestral property of defendants and they were in
exclusive possession and enjoyment. They stated
disputed plaintiff was never in possession of suit property.
They also denied purchasing of suit property under sale
deed dated 19.12.1977. They alleged that plaintiff, in
collusion with revenue authorities, had got revenue
records mutated. It was stated that plaintiff had no right
and with wrong intention, by making out false story of
dispossession, had filed suit. Hence, sought for its
dismissal.
4. Based on pleadings trial Court framed following
issues:
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"1. Whether the Plaintiff proves that he is the
absolute owners of the suit schedule property?
2. Whether the plaintiff further proves that he is
entitled to get the possession of the suit schedule
property from the defendants?
3. Whether the court fee paid by the plaintiff is
sufficient?
4. Whether the plaintiff is entitled to get decree as
prayed for?"
5. What decree or order?
5. Thereafter, plaintiff examined himself and two
others witnesses as PW.1 to PW.3 and got marked
documents as Ex.P1 to Ex.P28. While defendant no.2 and
two others were examined as DW.1 to DW.3 and got
marked documents as Ex.D1 to Ex.D7.
6. On consideration, trial Court answered issue
no.1 in negative, issue no.3 in affirmative, issues no.2, 4
and 5 by dismissing suit.
7. Aggrieved thereby, plaintiff filed
R.A.no.118/2009 on several grounds. Based on
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contentions urged, first appellate Court framed following
points for its consideration.
"1.whether the plaintiff has proved his absolute title
and ownership over the suit schedule property, as
per the boundary shown in the plaint schedule?
2.whether the impugned judgment and decree dated
22-12-2005 passed by the trial Court in
OS.No.106/1998 in dismissing the suit is against law,
facts, evidence and probabilities of the case and as
such it is liable to be interfered with by this court?
3. what order or decree?"
8. By answering points no.1 and 2 in affirmative,
first appellate Court allowed appeal and set aside
judgment and decree passed by trial Court and decreed
plaintiff's suit, declaring plaintiff as absolute owner of suit
schedule property and directing defendants to vacate and
hand over possession of suit property to plaintiff within
three months. Being aggrieved, defendants are in appeal.
9. Sri. H.C.Sundaresh, learned counsel for
appellants, submitted while trial Court had considered
contentions of defendants and dismissed suit on finding
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that there was dispute regarding boundaries of suit
property and holding suit was barred by limitation, first
appellate Court reversed findings on untenable grounds.
10. First appellate Court failed to take note of
defendant's contention that suit property was their
ancestral property substantiated by Exs.D1 to D7. It was
further submitted as per plaintiff, he had purchased 5
properties under sale deed dated 19.12.1977 namely
Survey nos.10/5, 10/6, 11/2, 11/3 and 11/5.
11. In plaint suit schedule mentioned boundaries as
shown in sale deed. Trial Court had appreciated this
aspect and dismissed suit on ground of improper
description of suit property. First appellate Court reversed
same by observing that when purchase of suit property
under Ex.P1 - sale deed was established, description of
suit property where common boundaries as per Ex.P1 -
sale deed would not be fatal, which would be contrary to
law.
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12. Hence, following substantial questions of law
would arise for consideration.
"1.Whether the plaintiff has proved his alleged right,
title and ownership over the suit property in
accordance with law?
2. Whether the plaintiff had approached the Court
with clean hands?
3. Whether the 1st appellate Court was right in
allowing the appeal and reversing the Judgment and
Decree of the Trial Court, by giving its own assumed
findings and conclusions, having regard to the facts
and circumstances of the case and also evidence on
record?"
13. Heard learned counsel for appellants, perused
impugned judgment and decree and records. None
appears for respondents.
14. From above, it is seen that present appeal is
filed by defendants challenging judgment and decree
passed by first appellate Court mainly on two grounds,
i.e., first appellate Court failed to consider defendants
contention that suit property was their ancestral property
as indicated in Exs.D1 to D7 and that there was improper
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description of boundaries of suit property and therefore
granted decree based on incorrect boundaries would be
contrary to law.
15. Insofar as incorrect boundary description of suit
property in plaint is as follows:
ಾಪಟ ಣ ಾಲೂಕು, ೆಟ ದಪ ರ ೋಬ , ಗುರುವಯ ನ ೊಪ ಲು ಾ ಮ ೆ"
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ಸ%ೆ& ನಂ.11/7ರ ಜ-ೕನು.
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ಸ%ೆ& ನಂ.11/6Eೇ ಜ-ೕನು.
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#ಾCDೕನದGರುವ ಸ%ೆ& ನಂ.11/4Eೇ ಜ-ೕನು.
16. On perusal of written statement filed by
defendants would reveal that except denying plaint
averments, there is no specific plea taken about incorrect
description of suit property or about suit being barred by
limitation. Issues framed by trial Court would also indicate
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that no specific issue is being framed in this regard.
Parties have prevented trials based on issue framed.
17. It is also seen that during cross-examination of
plaintiff, it is elicited that under Ex.P1 - sale deed, plaintiff
had purchased 5 properties and description of suit
property was as per sale deed. There is no specific
suggestion that there was an improper description. There
are no suggestion that description of suit schedule was in
respect of different extent than suit property. The witness
has sustained cross-examination. There are no material
elicitations that would render his deposition unbelievable.
PW.2 and PW.3 had supported deposition of plaintiff no.1.
In support of plaintiff's contention, plaintiff has perused
original register sale deed as per Ex.P1. Same is called
out with record of rights to suit property during various
years. Ex.P10 is survey sketch of properties purchased.
Same would indicate demarcation of property and survey
of suit schedule property.
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18. While passing judgment and decree, trial Court
observed that contrary to specific pleadings and claim
schedule, plaintiff had produced records indicating
situation of suit property in Thammadahalli village,
whereas in plaint, it was shown as situated in
Guruvaiahana koppalu village. Said observation would be
contrary to record as there is an amendment of plaint and
correction of schedule showing suit property is situated in
Thammadahalli village.
19. Insofar as trial Court refers to suggestion made
to PW.1 regarding boundary description to conclude that it
was more probable that plaintiff had not established
boundaries of suit property. In absence of specific plea
disputing boundary description and plaintiff having
amended suit schedule property insofar as village wherein
suit property was situated, findings of trial Court are
weighed heavily on incorrect description of suit property.
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20. It is also seen that trial Court applied period of
limitation under Article 58 of Limitations Act and held suit
filed in year 1998 on 07.09.1998 in respect of cause of
action that accrued in June 1995 and was barred by
limitation.
21. While passing judgment and decree, first
appellate Court has taken note of fact that there was no
contention raised about suit being barred by limitation
before trial Court. No specific issue had been framed and
it was also held that since suit was filed not only for
declaration of title but also for possession, period of
limitation applicable would be Article 74 and not Article 58.
22. Insofar as contention of improper boundary
description, it is found that plaintiff had established
acquisition of title in respect of suit property as per Ex.P1-
sale deed and Ex.P10 and Ex.P11, survey sketch would
duly corroborate plaintiff title.
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23. First appellate Court has also referred to
material placed by defendants to conclude that there was
no basis for entry of name of defendant no.2 in revenue
records of suit property. Therefore, first appellate Court
has passed judgment and decree after re-appreciation of
entire material on record and by assigning reasons.
24. In view of fact that there was no specific plea
taken by defendants before trial Court about improper
boundary description or about period of limitation, reversal
of decree and judgment passed by trial Court and first
appellate Court is based on some principles of law.
Therefore, substantial questions of law proposed do not
arise for consideration. Hence appeal is dismissed.
25. In view of dismissal of the appeal, pending
applications also stand disposed of accordingly.
Sd/-
(RAVI V HOSMANI)
JUDGE
