Allowed

Alamellamma v. Smt Subbamma

Karnataka HC11 Oct 2013RSA/1212/2008

Case brief

AI extract

What is this about?

This regular second appeal challenged the dismissal of a suit for injunction regarding property possession. The court held that since the site was exhausted by prior sales to others, the defendant could have no title. The appeal was allowed, the first appellate judgment set aside, and the trial court decree restored.

What did the court decide?

The appeal was allowed. The judgment and decree of the first appellate court were set aside, and the judgment and decree of the trial court were restored. No costs.

Alamellamma Vs Smt Subbamma — Property and Title | Karnataka HC (2013)

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RSA 1212/08

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

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DATED THIS THE 11^TH DAY OF OCTOBER, 2013

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BEFORE:

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THE HON’BLE MR. JUSTICE A.S.PACHHAPURE

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REGULAR SECOND APPEAL No.1212 OF 2008

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BETWEEN:

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Alamellamma, W/o. late N. Suresh, Aged about 47 years,

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Harish, S/o. late N. Suresh, Aged about 47 years, Both are residing at P.W.D. Quarters, Nagamangala Town, Mandya District-571 432. ... APPELLANT/S [By Sri. L.Raja, Adv.] AND: Subbamma, W/o. Raghu Kumar, Aged about 47 years, R/at B.M. Road, Nagamangala Town, Nagamangala-571 432. ... RESPONDENT/S [By Sri. Sridhar C.K., Adv. for C/R.]

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RSA 1212/08

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This RSA is filed u/Section 100 of CPC against the Judgment & Decree dt. 31.01.2008 passed in R.A. No.94/2006 on the file of the Civil Judge (Sr.Dn.) & JMFC., Nagamangala, allowing the appeal and setting aside the Judgment and Decree dtd 12.03.2004 passed in O.S. No.226/2001 on the file of the Civil Judge, (Jr.Dn.) & JMFC., Nagamangala.

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This RSA coming on for Dictating Orders this day, the Court delivered the following:

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JUDGMENT

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The appellants have challenged the judgment and

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decree of the first appellate Court dismissing the suit by allowing the appeal of the respondent and setting aside the injunction decree granted in their favour.

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The facts reveal that the plaintiff

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instituted the suit for injunction to restrain the defendant from causing obstruction from peaceful possession and enjoyment of the site measuring 40 x 60 feet with the boundaries mentioned in the schedule to the plaint purchased by him under sale deed dated 27.1.1997. It is his contention that the defendant had no right or any interest in the suit

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RSA 1212/08

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property and caused obstruction to his peaceful possession and enjoyment and therefore sought a decree of injunction.

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The defendant appeared before the trial Court and denied the title of the plaintiff and purchase of the suit property including its boundaries. According to the defendant he purchased the suit property under a registered sale deed dated 20.10.1999 and that the plaintiff has given a wrong boundary. It is also his contention that he is in possession of the suit property on the basis of the registered sale deed dated 20.10.1999. Hence, he has sought for dismissal of a suit.

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On the basis of the pleadings the trial Court framed the issues calling upon the plaintiff to prove his lawful possession, obstruction etc. Accordingly, the plaintiff examined himself as PW.1 and two witnesses PWs.2 and 3. In their evidence the documents Exs.P1 to P10 were marked. The defendant

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RSA 1212/08

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examined herself as DW1 and a witness DW2 and the documents Ex.D1 was marked.

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The trial Court after hearing the counsel for

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the parties and on appreciation of the evidence on record, decreed the suit of the plaintiff. Aggrieved by the judgment and decree, the defendant preferred an appeal in RA No.94/2006. Under the impugned judgment and decree, the first appellate Court has allowed the appeal and dismissed the suit of the appellant. Aggrieved by the judgment and decree of the first appellate Court, the legal representatives of the plaintiff are in appeal.

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At the time of admission the following

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substantial question of law has been raised:

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“Whether the vendor of the plaintiff

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having admitted that the sale in favour of the appellant [plaintiff] is earlier in point of time could have been over looked in reversing the finding of the trial Court?”

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RSA 1212/08

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I have heard learned counsel for the

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parties.

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The learned counsel would contend that the plaintiff has purchased the suit property much earlier to the sale deed executed by its erstwhile owner in favour of the defendant and therefore it is his contention that the first appellate Court committed an error in rejecting the claim of the appellant though the sale deed in favour of the appellant was earlier to the sale deed of the defendant. Hence he submits that the first appellate Court committed an illegality in dismissing the suit of the appellant.

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Learned counsel for the respondent has supported the Judgment and Decree of the first appellate Court.

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The total site with assessment No.3426 was

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measuring 110 feet x 60 feet and as could be seen from the sale deed at Ex.P10 Smt.Prema the erstwhile

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RSA 1212/08

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owner executed a sale deed in favour of

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Nethravathamma and sold 30 x 60 feet the portion of the western side. So, what remain with Smt.Prema the erstwhile owner after selling 30 x 60 feet site to Nethravathamma was 80 feet east-west and 60 feet north-south. The said Smt.Prema has sold 40 x 60 feet a site out of the total site measuring 110 x 60 feet to one Gangamma who is examined as PW2 under a registered sale deed dated 9.10.1995. This sale deed is not produced. Therefore, after executing the sale deeds to Nethravathamma and Gangamma, what remains with the erstwhile owner Smt.Prema was 40 x 60 feet and it is the contention of the plaintiff that he has purchased this remaining site under a registered sale deed dated 27.1.1997, which has been produced at Ex.P1.

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As could be seen from the boundaries under Ex.P1, the plaintiff has purchased the site measuring 40 x 60 feet which is said to be the suit property and on the eastern side of the suit site is said to

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RSA 1212/08

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be the remaining portion of the total site, on the west is the site sold to Nethravathamma and on the North is the space of 20 feet left for road and on the south is the land of Krishnappa.

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Anyhow, as could be seen from the

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contentions raised by the appellants that when site No.3426 was totally measuring 110 x 60 ft., one Sale Deed pertains to an area of 40 x 60 ft., the Sale Deed in favour of Nethravathamma is for an area measuring 30 x 60 ft., whereas the Sale Deed of the plaintiff is in respect of an area measuring 40 x 60 ft. Thereby, the total site measuring 110 x 60 ft. was bifurcated into 3 sites and was sold firstly in favour of Gangamma, secondly in favour of Nethravathamma and thirdly in favour of the plaintiff. The defendant claims that the right over the suit property is on the basis of the Sale Deed dated 20.10.1999. In fact the said Sale Deed is

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also not produced. When the defendant cannot acquire any portion of this site as it was sold to

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RSA 1212/08

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the aforesaid 3 persons earlier to this Sale Deed, the question of any interest of the defendant in the suit property does not arise as no portion was left behind after the aforesaid 3 Sale Deeds. Hence, the question of the defendant claiming any interest in the suit site does not arise. If the defendant has

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any Sale Deed in her favour, it may be an act of fraud on the person, who executed the Sale Deed in her favour and if she has a right to claim compensation or take any action against the said person, who has executed the Sale Deed. But, the defendant cannot question the possession of the plaintiff on the basis of the Sale Deed. In the aforesaid circumstances, the question of boundaries is of no importance as no property of the defendant is there in site No.3426. This fact has not been taken into consideration by the first appellate Court and thereby it committed an error in allowing

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the appeal of the respondent and dismissing the suit. The trial Court has assigned consistent and cogent reasons in decreeing the suit, whereas the

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RSA 1212/08

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first appellate Court solely on the ground that there was a mistake in mentioning the boundary, has rejected the claim of the appellants. This approach is wrong solely for the reason that the defendant has not acquired any interest in site bearing No.3426. Hence, I answer the substantial question of law raised in negative holding that the first appellate Court committed an error in reversing the finding of the trial Court. Consequently, the appeal is allowed. The Judgment and Decree of the first appellate Court is set aside and that of the trial Court is restored. No costs.

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The respondent is at liberty to approach proper Court for any relief against the person, who has executed the Sale Deed in her favour.

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AP/- & Ksm*

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Sd/JUDGE.

Alamellamma v. Smt Subbamma

Case brief

What is this about?

What did the court decide?

Alamellamma v. Smt Subbamma

Case brief

What is this about?

What did the court decide?

What the court decided

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