Allowed

Sri Narayana Gowda v. Sri Krishnaiah

Karnataka HC18 Jun 2013RSA/916/2011

Case brief

AI extract

What is this about?

The High Court allowed the regular second appeal, holding that a suit for declaration of title and permanent injunction is not maintainable when the plaintiff admits, in evidence, that they are not in possession of the suit schedule property, citing Section 34 of the Specific Relief Act.

What did the court decide?

The impugned judgment and decree of the first appellate court setting aside the trial court's dismissal were set aside; the trial court's judgment decreeing dismissal was restored; deposit of Rs.33,00

Sri Narayana Gowda Vs Sri Krishnaiah — Property and Title | Karnataka HC (2013)

¶1

¶2

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

¶3

DATED THIS THE 18^TH DAY OF JUNE 2013

¶4

BEFORE

¶5

THE HON’BLE MR.JUSTICE S. ABDUL NAZEER

¶6

REGULAR SECOND APPEAL NO.916/2011 (DEC/INJ)

¶7

Between:

¶8

1 Sri Narayana Gowda, S/o Dase Gowda, Aged about 53 years.

¶9

2 Sri Shivegowda, S/o Thammannagowda, Aged about 68 years.

¶10

Both are R/o Hubbanahalli Village, Santhebachahalli Hobli, K.R.Pet Taluk, Mandya Dist.571 401. …. Appellants.

¶11

(By Sri K.N.Puttegowda, Adv.)

¶12

And:

¶13

1 Sri Krishnaiah, S/o late Sannaiah @ Javaraiah, Aged about 41 years.

¶14

¶15

2 Sri Rajegowda, S/o Baathimmegowda, Aged about 48 years.

¶16

Both are r/o Hubbanahalli Village, Santhebachahall Hobli, K.R.Pet Tq., Mandya Dist.571 401. …. Respondents.

¶17

(By Sri R.G. Halesha, Adv. For R1 R2 served and unrepresented)

¶18

This Regular Second Appeal is filed under Section 100 of CPC against the judgment and decree in R.A.No.30/2009 dated 25.2.2011 on the file of the Civil Judge (Sr.Dn.) and JMFC at K.R.Pet, etc.

¶19

This Regular Second Appeal coming on for Admission this day, the Court passed the following:

¶20

JUDGMENT

¶21

This appeal is directed against the judgment and decree in

¶22

R.A.No.30/2009 dated 25.2.2011 on the file of the Civil Judge

¶23

(Sr.Dn.) & JMFC, K.R.Pet, whereby the judgment and decree in

¶24

O.S.No.28/2009 dated 20.4.2009 on the file of the Civil Judge

¶25

¶26

(Jr.Dn.) and JMFC, Krishnarajapete has been set aside and the suit has been decreed.

¶27

The appellants are defendant Nos.1 and 2 in the suit. The

¶28

first respondent is the plaintiff and the second respondent is the third defendant. For the sake of convenience, the parties are referred to by their respective ranking before the trial Court.

¶29

The plaintiff filed the above suit for declaration that he is the owner of the suit schedule property and for permanent injunction restraining the defendants from interfering with his peaceful possession and enjoyment of the said property. The contention of the plaintiff is that his father Sannaiah was the grantee of the said land. After his death, his brothers and himself have succeeded to the said property. The defendants are strangers to the property. They have no right, title or interest whatsoever over

¶30

¶31

the said property. They are making efforts to oust the plaintiff from the property.

¶32

The defendants have filed their written statement denying

¶33

the plaint averments. They have denied that the plaintiff is in possession and enjoyment of the said property. According to them, the grant certificate issued in favour of the father of the plaintiff has been cancelled.

¶34

On the basis of the pleadings of the parties, the trial Court has framed the relevant issues. The plaintiff got himself examined as P.W1 and documents Ex.P1 to Ex.P6 have been marked in his evidence. The defendants have not let in any evidence. On appreciation of the materials on record, the trial Court has dismissed the suit. As stated above, the first Appellate Court has set aside the said judgment and decree and has decreed the suit.

¶35

¶36

While admitting the appeal, this Court has framed the

¶37

following substantial question of law as under:

¶38

“Whether the first Appellate Court is legally justified in holding that the plaintiff is in possession and enjoyment of the plaint schedule property ignoring the admission made by PW-1 in his evidence that first defendant is in possession and enjoyment of the plaint schedule property?”

¶39

Sri Puttegowda, learned Counsel appearing for the appellants would contend that P.W1 in his cross-examination has clearly admitted that he is not in possession of the suit schedule property. Therefore, the suit filed by the plaintiff under Section 34 of the Specific Relief Act is not maintainable. The trial Court has taken into consideration the admission made by P.W1 in his crossexamination and has rightly dismissed the suit. The first Appellate

¶40

¶41

Court without considering this aspect of the matter and without taking note of the admission has set aside the judgment and decree of the trial Court and has decreed the suit.

¶42

On the other hand, Sri Halesh, learned Counsel appearing

¶43

for the first respondent has sough to justify the impugned judgment and decree.

¶44

I have carefully considered the arguments made by the

¶45

learned Counsel at the Bar and perused the materials placed on record.

¶46

The suit filed by the plaintiff is for declaration and possession on the basis of title. According to the plaintiff, the suit schedule property was granted in favour of Sannaiah, his father. After the death of Sannaiah, the plaintiff and his brothers and

¶47

¶48

sisters have become co-owners of the property. They are not parties to the suit. Even on his own showing, he is only a co-owner. He cannot claim absolute title to the entire property. Therefore, the trial

¶49

Court was right in holding that the suit claiming absolute ownership was not maintainable. Apart from the above, P.W1 in his evidence has admitted as under:

¶50

“D¹ÛAiÀÄÄ £ÀªÀÄä vÀAzÉAiÀÄ ºÉ¸ÀjUÉ ªÀÄAdÆgÀÄ DVzÉ. D PÁgÀt¢AzÀ £Á£ÀÄ F zÁªÉ ªÀiÁrzÉÝÃ£É. £ÀªÀÄä vÀAzÉUÉ MlÄÖ £Á®ÄÌ d£À ªÀÄPÀÌ¼ÀÄ; £ÀªÀÄä vÀAzÉUÉ ªÀÄÆgÀÄ d£À ºÉtÄÚ ªÀÄPÀÌ¼ÀÄ EzÉÝÃªÉ. £ÁgÁAiÀÄtUËqÀ£À ªÉÄÃ¯É £Á£ÀÄ F zÁªÉ ªÀiÁrzÉÝÃ£É. £ÀªÀÄä d«ÄÃ£À£ÀÄß ¥ÀæwªÁ¢ £ÁgÁAiÀÄtUËqÀ£ÀÄ ªÀiÁqÀÄvÁÛ EzÀÝ PÁgÀt¢AzÀ £Á£ÀÄ F zÁªÉAiÀÄ£ÀÄß ªÀiÁrzÉÝÃ£É. ¸ÀÄªÀiÁgÀÄ 8 CxÀªÁ 9 ªÀµÀðUÀ½AzÀ £ÁgÁAiÀÄtUËqÀ£Ài CAzÀgÉ 1£ÉÃ ¥ÀæwªÁ¢AiÀÄÄ ªÀåªÀ¸ÁAiÀÄ ªÀiÁqÀÄvÁÛ EzÀÝ£ÀÄ. CzÀQÌAvÀ ªÉÆzÀ®Ä £ÁªÀÅ ªÀåªÀ¸ÁAiÀÄ ªÀiÁqÀÄvÁÛ

¶51

EzÉÝªÀÅ. FUÀ ºÉÃ¼ÀÄvÉÛÃ£É 8 CxÀªÁ 9 ªÀµÀðUÀ½AzÀ 1£ÉÃ ¥ÀæwªÁ¢AiÀÄÄ ªÀåªÀ¸ÁAiÀÄ ªÀiÁqÀÄvÁÛ EzÁÝ£É. 1£ÉÃ ¥ÀæwªÁ¢AiÀÄÄ ªÀåªÀ¸ÁAiÀÄ ªÀiÁqÀÄvÁÛ EgÀÄªÀ d«ÄÃ¤£À ¸ÀªÉð £ÀA§gÀÄ ªÀÄvÀÄÛ ¢PÀÄÌ§A¢ K£ÀÄ JAzÀgÉ CzÀÄ F zÁªÉAiÀÄ zÁªÁ D¹Û DVzÉ.”

¶52

It is thus clear that he is not in possession of the suit schedule property. On the other hand, the first defendant is in possession of the property. He has been cultivating the land. An admission is the best evidence that an opposing party can rely upon. It is well established that a suit for declaration of title and ownership is not maintainable if it is found that the plaintiff is not in possession of the suit schedule property. In UNION OF INDIA

¶53

VS. IBRAHIM UDDIN AND ANOTHER – (2012) 8 SCC 148 , the Apex Court has considered this question and has held that in a declaratory suit, if the plaintiff is not in possession of the property, the suit is barred under Section 34 of the Specific Relief Act. It has

¶54

¶55

been held as under:

¶56

“58. In the instant case, the suit for declaration of title of ownership had been filed, though respondent No.1/plaintiff was admittedly not in possession of the suit property. Thus, the suit was barred by the provisions of Section 34 of the Specific Relief Act and, therefore, ought to have been dismissed solely on this ground. The High Court though framed a substantial question on this point but for unknown reasons did not consider it proper to decide the same.”

¶57

Therefore, the suit filed by the plaintiff for declaration and injunction is not maintainable. The substantial question of law framed at the time of admission of the appeal is answered accordingly.

¶58

¶59

The first Appellate Court without taking into

¶60

consideration these aspects has set aside the judgment and decree on the ground that the first defendant has not taken a plea of

¶61

adverse possession. Since the plaintiff is admittedly not in possession of the property, the first Appellate Court should not have reversed the well considered judgment of the trial Court.

¶62

In the result, the appeal succeeds and it is accordingly

¶63

allowed. The judgment and decree in R.A.No.30/2009 dated 25.2.2011 passed by the Civil Judge (Sr.Dn.) and JMFC at K.R.Pet

¶64

is hereby set aside the the judgment and decree of the trial Court in O.S.No.28/2003 dated 20.4.2009 passed by the Civil Judge (Jr.Dn.) & JMFC, Krishnarajapete is hereby restored.

¶65

On 30.8.2011, this Court had directed the appellants to cut and sell the standing sugar cane grown in the plaint schedule

¶66

¶67

property subject to the appellants depositing the sale price of the cane in this Court. In obedience of the said order, the appellants have cut and removed the sugar cane and have deposited the sale proceeds of Rs.33,000/- before this Court. Since the appeal is allowed, the appellants are entitled for withdrawal of the amount. Therefore, the appellants are permitted to withdraw the amount in deposit. No costs.

¶68

Sd/JUDGE.

¶69

BMM/-

Sri Narayana Gowda v. Sri Krishnaiah

Case brief

What is this about?

What did the court decide?

Sri Narayana Gowda v. Sri Krishnaiah

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Smt Lakshmi Vs Sri Nagaraja

Abdul Jabbar @ Ameer Vs Habeeb Pasha

M/S Canara Jewelers Vs the Corporation Bank

Shivanandappa Vs Kamanna S/O Late Rangappa

Sathish Vs Smt Bidugu Hengsu

Sri Kotemariamma Devalaya Yuvaka Mithra Mandali (R Vs Sri K B Harish