Dismissed

Sri Chickaboregowda @ Busigowda S/O Hotteboregowda v. Chamegowda S/O Marigowda

Karnataka HC20 Nov 2020RSA/1736/2006

Case brief

AI extract

What is this about?

This is a regular second appeal challenging the dismissal of a suit for declaration of title and permanent injunction. The appellant claimed he purchased land but the sale deed contained wrong survey numbers. The court held that the plaintiff purchased and subsequently sold the land in the deed's survey number, possessing no title to the land in the suit.

What did the court decide?

The appeal stands dismissed with costs throughout.

Sri Chickaboregowda @ Busigowda S/O Hotteboregowda Vs… — Property and Title | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20^TH DAY OF NOVEMBER, 2020 BEFORE

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THE HON’BLE MR. JUSTICE N.K.SUDHINDRARAO

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R.S.A. No.1736 OF 2006 (DEC/INJ)

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BETWEEN:

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Sri.Chickaboregowda @ Busigowda S/o Hotteboregowda, Aged about 76 years, R/o Borapura Village, Melukote Hobli, Pandavapura Taluk, Mandya District-571431.

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Rep. by his GPA Holder Sri. H.Boregowda S/o Chickaboregowda @ Busigowda, Aged about 46 years, R/o Borapura Village, Melukote Hobli, Pandavapura Taluk, Mandya District-571431.

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Since the appellant is dead, repd. by his lrs

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Bhagyamma D/o late Chickaboregowda, W/o late Yaduraj, Aged about 48 years, R/o Hosakote M.K.Hobli, Pandavapura Taluk, Mandya District.

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Ningamma D/o late Chickaboregowda, W/o Shivalingaiah, Aged about 55 years, R/o Gangaondanahalli, Bengaluru-39. 3. H. Boregowda S/o late Chickaboregowda, Aged about 46 years, R/o Borapura Village, Melukote Hobli, Pandavapura Taluk, Mandya District. 4. Puttaboregowda S/o late Chickaboregowda, Aged about 45 years, R/o Borapura Village, Melukote Hobli, Pandavapura Taluk, Mandya District ... Appellants (By Sri. S.V.Prakash, Advocate) AND:

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Chamegowda S/o Marigowda, Aged about 54 years, R/o Borapura Village, Melukote Hobli, Pandavapura Taluk, Mandya District-571431. ... Respondent (By Sri.K.N.Nithish, for Sri.K.V.Narasimhan, Advocate for respondent)

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This Regular Second Appeal is filed under Section 100 of CPC against the judgment and decree dated 01.04.2006 passed in R.A.No.64/2002 on the file of the Addl. Civil Judge (Sr.Dn.), Srirangapatna, dismissed the appeal confirming the judgment and decree dated 03.09.2002 passed in O.S.No.21/2000 on the file of the Civil Judge (Jr.Dn.) Pandavapura.

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This RSA coming on for final hearing this day, the court delivered the following:-

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JUDGMENT

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This appeal is directed against the judgment and decree passed in R.A.No.64/2002 on the file of the Additional Civil Judge (Sr.Dn.), Srirangapatna, dated 01.04.2006 wherein the learned appellate Judge dismissed the appeal and confirmed the judgment and decree dated 03.09.2002 passed in O.S.No.21/2000 on the file of the Civil Judge (Jr.Dn.), Pandavapura.

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In order to avoid confusion and overlapping, the parties are addressed with reference to their ranking held by them in the trial Court.

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To begin with this appeal, it is filed by the appellant/plaintiff-Chikkaboregowda @ Busigowda, against the respondent/defendant-Chamegowda. The original suit in O.S.No.21/2000 was filed for the relief of declaration of title and permanent injunction against the defendant restraining him and his men from interfering with the peaceful possession and enjoyment of the schedule property measuring 0.15 guntas in Sy.No.3/10 situated at Borapura Village, Melukote Hobli, Pandavapura Taluk bounded on east by Sy.No.3/13, west and north by land of the defendant in Sy.No.3/12 and south by government halla.

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The plaintiff sought for the relief of declaration and claims that he purchased agricultural land for cash consideration of Rs.975/- from one Javaregowda @ Kategowda under the registered sale deed dated 15.06.1959. It is further claimed that in the said sale deed, the survey number of the land has been wrongly

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mentioned as 3/14 measured as 27 guntas instead of Sy.No. 3/10 measuring 15 guntas. When the land was got measured by the plaintiff, he came to know that his vendors have sold him the schedule property bearing Sy.No.3/10 measuring 15 guntas.

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The defendant denied the claims and contentions

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of the plaintiff. The defendant contended that the plaintiff has no right, title, interest or possession in respect of the suit schedule property as the plaintiff tried to make wrongful gain.

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The learned trial judge has framed issues regarding the declaration of title and wrongly mentioning of survey number, nominal nature of the sale deed, entitilement of relief. The learned trial judge was accommodated with the oral evidence of P.Ws.1 to 4 namely Boregowda, Boregowda @ Tippu, Papegowda and Boregowda @ Kenchegowda respectively and documentary evidence as Ex.P1 to P12 which are filed

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on behalf of the plaintiff i.e, Adhikara Patra, Kraya patra, copy of M.R., Form No.5, RTC, copy of order of D.C., order copy of W.P.No.16332/1997, R.R. copies and index of land. On behalf of defendant, no evidence is adduced nor documents are produced.

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On conclusion of the trial, the suit came to

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be dismissed. Being aggrieved by the said judgment and decree passed in O.S.No.21/2000 by the Court of Civil Judge (Jr.Dn.), Pandavapura dated 03.09.2002, the plaintiff preferred an appeal in R.A.No.64/2002 on the file of the Addl. Civil Judge (Sr.Dn.), Srirangapatna. The learned Addl. Civil Judge (Sr.Dn.), Srirangapatna dismissed the R.A.No.64/2002 dated 01.04.2006 confirming the judgment and decree passed in O.S.No.21/2000 by the trial Judge. Being aggrieved by

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the same, the plaintiff has come before this Court preferring this regular second appeal. During the

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pendency of the appeal, the appellant died and his legal representatives have come on record.

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Learned counsel, Sri.S.V.Prakash appearing

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for appellant/plaintiff would submit that the plaintiff has purchased the land bearing Sy.No.3/10 measuring 15 guntas situated at Borapura Village, Melukote Hobli, Pandavapura Taluk under the sale deed dated 15.06.1959 which is marked as Ex.P2. Learned counsel

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would further submit that after a long period of time when the plaintiff got the land surveyed, he came to know that he was in possession of land in Sy.No.3/10 to the extent of 15 guntas not in the Sy.No. 3/14 to the extent of 27 guntas. Learned counsel would further submit that the Deputy Superintendent of land survey who measures the land as per the state of affairs concluded in the report that the property which is in possession and enjoyment of the plaintiff is 15 guntas of land in Sy.No. 3/10. Then the plaintiff wants

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declaration of title against the defendant. He would further submit that the defendant is not the vendor of the plaintiff. However, it is stated that because of wrong mentioning of survey numbers in the sale deed and actual possession of the land as per the state of affairs as per the report of Deputy Superintendent, seeks the relief.

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Learned counsel Sri. Nithish K.N., for

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Sri. K.V.Narasimhan appearing for respondent/defendant

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would submit that the claim of the plaintiff is against the established principles of evidence and rules regarding the entitlement of reliefs. He would further submit that the plaintiff was never the owner of the suit schedule property. The plaintiff was not in possession and enjoyment of the suit schedule property. The learned counsel would further submit that the present defendant namely Chamegowda son of Marigowda is the owner and in possession and enjoyment of the suit

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schedule property. The plaintiff had no right, title or interest over the suit schedule property. The plaintiff has purchased the property in Sy.No.No.3/14 to an extent of 27 guntas and the same was sold to one Kenchegowda by the plaintiff, as such, the plaintiff has no property. The plaintiff is trying to encroach upon the suit schedule property of the defendant. The learned counsel would further submit that the sale deed and the other documents filed by the plaintiff is against to his own case. Hence, the learned counsel for the respondent prays for dismissal of the appeal.

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While admitting the appeal, this Court has framed the following Substantial Question of Law on 23.02.2011:

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“Whether the courts below were justified in dismissing the suit of the appellant only because there was a mistake in mentioning the phodi number and area though the boundaries were correct, which prevail over the survey number or the area in the sale deed dated 15.06.1959 and despite the fact that there was a nominal sale deed executed

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by the appellant in favour of the vendor in respect of Sy.No.3/14 under the sale deed dated 27.11.1968? ”

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However, I also framed the following additional

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Substantial Questions of Law:

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I. “Whether the relief be molded in respect of land which different number in the context against the title deed?”

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II. Whether the materials regarding the title of the vendors of the plaintiff in respect of Sy.No.3/10 is necessary in the circumstances of the case among the documents which are exhibited Ex.P2 as significance?

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Learned counsel for the appellant would submit

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that elders in the village advised the parties to go in accordance with the state of affairs and asked the plaintiff to give back the suit schedule property and he would be entitled for the suit schedule property to be enjoyed which was already in possession. But on analysis, the contents of the sale deed-Ex.P2 does not reflect the preceding talks of the elders or their advise or

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asking the plaintiff to execute registered sale deed. Moreover, the said sale deed is not executed in favour of vendor or persons claims under the vendor of the plaintiff. On the other hand, the purchaser of the property is Boregowda @ Kenchegowda son of Javaregowda and also the recitals of the sale deed discloses that the vendor has sold the property for his financial crisis not in pursuance of the survey nor it is exchanged wherein one property is not exchanged or rectification.

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However, the documents filed by the plaintiff do not contain those relating to schedule property in Sy.No. 3/10 measuring 14 (15) guntas situated at Borapura Village, Melukote Hobli, Pandavapura Taluk. It contains that the vendor is the owner of the land in Sy.No. 3/14 and/or land in Sy.No. 3/10 to consider instead writing 3/10, 3/14 was erroneously written. It is not the case that there is no paper to say that vendor

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of the plaintiff is also the owner of the land in Sy.No. 3/10. Such being the case, the very aspiration of the plaintiff to claim the land in Sy.No. 3/10 is not accepted and it is very strange.

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Further, suit is filed against the present defendant, not that the land which is under the possession of the defendant belongs to the plaintiff and the entire plaint does not disclose that how the defendant entered in the plaint in respect of suit schedule property. The learned counsel for plaintiff has drawn my attention regarding the survey superintendence. In this connection, once total land is given, survey number is transferred, the division of the land takes place in accordance with legally established procedure, wherein revenue report states in the facts, payment of necessary fee, physical examination of the land, measurement of the land, marking of the land that is to be separated allotment of survey number, such

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land number after this on the basis of the necessary amendment is made in the document by survey department and that is how one gets the survey. But say of the plaintiff is that the report of the superintendent stated that his possession is in the land bearing Sy.No.3/10 but not in Sy.No. 3/14. This is totally not acceptable.

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Incidentally, there is no whisper regarding measurement of the land in the presence of the owner of the land bearing Sy.No. 3/10. The Principle “ Nemo Dat Quod Non-Habet " says, no one convey what he does not have", the purchase of a possession from someone who has no ownership right to it also denies the purchaser any ownership title. The extended reading can say, no one can claim what he is not entitled. Further, no one can assert the ownership where it is gone away under the sale deed Ex.P9. For any purpose, the document contains valid sale deed, name of the purchaser, name

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of the surveyor, schedule property to the extent. Whatever he purchased has gone, there is no document from the owner; nor the person entitled to sell the property in Sy.No.3/14; nor agreement or undertaking; nor proceedings; nor any reliable materials to show the plaintiff has been placed from the Sy.No. 3/14, 3/15 or allow him to continue with the possession. Further, he transferred the property and executed the nominal deed on 27.11.1968. The plaintiff filed a suit on 19.01.2000.

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It is very significant to note that, in the meanwhile, there is no circumstances or materials or evidence to say that he acquired the right over the suit schedule property in Sy.No. 3/10 measuring 15 guants or even on the land in Sy.No.No.3/14 to any extent. The bigger question is that having sold the property in the year 1968 under Ex.P9 sale deed, what made him to claim the suit, saying that he has purchased the suit schedule property, whatever he purchased that was lost but he

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started claiming in a different property saying, what he purchased was different property.

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In the circumstances of the case, it is not a mere correction or alteration, for a moment, even if the survey number was right, rectification deed would have been made provided the vendor is the owner of the property, is not a question what he purchased and sold to the plaintiff. Question of alteration may be of two kinds, one is formal and another is material. Certain alteration is in the boundaries and name of owner to be mentioned. Certain aspects does not alter the confirmation of the right, they are formal correction mere which, two material alteration regarding the name of seller, buyer, amount, extent of land, nature of the land whether formed or not. They are in material form.

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Here it is not formal correction or rectification that demanded by the plaintiff. The sum and substance of the case of the plaintiff is he wants declaration of title

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and permanent injunction in respect of land which he did not purchase. More particularly, the land purchased by him was already sold in the year 1968. Hence, the substantial questions of law framed in this appeal are answered accordingly.

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Therefore, I do not find any infirmity, illegality, perversity or arbitrariness in the judgment and decree dated 03.09.2002 passed in O.S.No.21/2000 by the trial court which is confirmed by the appellate court in R.A.No.64/2002 dated 01.04.2006. Hence, the appeal stands dismissed with cost through out.

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Sd/JUDGE

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JS/-

Sri Chickaboregowda @ Busigowda S/O Hotteboregowda v. Chamegowda S/O Marigowda

Case brief

What is this about?

What did the court decide?

Sri Chickaboregowda @ Busigowda S/O Hotteboregowda v. Chamegowda S/O Marigowda

Case brief

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What did the court decide?

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