Dismissed

Rudranna S/O Veeranna v. Smt Gowramma W/O M S Basavaraju

Karnataka HC16 Dec 2020RSA/3113/2006

Case brief

AI extract

What is this about?

This regular second appeal challenged a decree granting permanent injunction to a wife regarding her late husband's property. The court addressed claims of the husband's absence, the extent of land including 'kharab' portions, and statutory presumptions of death, ultimately dismissing the appeal and upholding the lower court's decision.

What did the court decide?

The appeal was dismissed; the judgments and decrees of the lower courts were affirmed and remain operative.

Rudranna S/O Veeranna Vs Smt Gowramma W/O M S Basavaraju — Property and Title | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF DECEMBER, 2020

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BEFORE

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

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REGULAR SECOND APPEAL No.3113/2006

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BETWEEN:

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RUDRANNA

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S/O VEERANNA AGED ABOUT 57 YEARS AGRICULTURIST,

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BY OCCUPATION

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R/O. MANUVINAKURKE C.N. DURGA HOBLI, KORATAGERE TALUK

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TUMKUR DIST-572 101.

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SINCE APPELLANT NO.1 IS DEAD REPRESENTED BY HIS LRS.

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1(a). NAGAMMA

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W/O RUDRANNA (LATE) AGED ABOUT 55 YEARS

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1(b). SURESH

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S/O LATE RUDRANNA AGED ABOUT 36 YEARS

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1(c). SHIVANNA S/O LATE RUDRANNA AGED ABOUT 32 YEARS

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ALL ARE R/AT MANUVINAKURKE, C.N. DURGA HOBLI, KORATAGERE TALUK, TUMKUR DIST-572 107.

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2 . SIDDAPPA S/O. VEERANNA AGED ABOUT 53 YEARS FOOD DEPARTMENT R/O. DARAGA ROAD CHOWDESHWARI BEEDI MADHUGIRI-572 132.

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…APPELLANTS

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(BY SHRI N.S.PRASAD, ADVOCATE)

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AND:

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SMT. GOWRAMMA, W/O M S BASAVARAJU AGED ABOUT 42 YEARS R/O. MANUVINAKURKE VILLAGE, C.N. DURGA HOBLI KORATAGERE TALUK TUMKUR DIST-572 101.

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…Respondent

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(BY SHRI T. GOVINDA RAJA, ADVOCATE-ABSENT)

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 01.09.2006 PASSED IN R.A.NO.145/2005 ON THE FILE OF THE CIVIL JUDGE (SR.DN) MADHUGIRI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 17.10.2005 PASSED IN OS.NO.96/2004 ON THE FILE OF THE CIVIL JUDGE (JR.DN) AND JMFC., KORATAGERE.

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THIS REGULAR SECOND APPEAL COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Counsel for appellants present. Counsel for

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respondent absent and there is no representation. The matter is of the year 2006, in terms of the regular appeal it is of the year 2005 and in terms of the original suit it is of the year 2004.

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The present Regular Second Appeal filed by defendants relates to Original Suit No.96/2004 filed by one Smt.Gowramma W/o M.S.Basavaraju against defendants - Rudrappa and Siddappa, for the relief of permanent injunction. The said suit came to be decreed in favour of the plaintiff on 17.10.2005. The defendants preferred appeal in R.A No.145/2005. The said appeal came to be dismissed on 01.09.2006. Being aggrieved of the said

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judgment and decree the defendants have come in this

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Regular Second Appeal.

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In order to avoid confusion and overlapping the

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parties are addressed in accordance with their ranks as stood in the trial Court.

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The case as presented by the plaintiff before the trial Court is that the schedule property was purchased by M.S.Basavaraju husband of plaintiff from one Gangamma by registered sale deed dated 25.05.1992. The katha and pahani of the document was transferred in the name of plaintiff’s husband. Unfortunately, from 24.04.2000 plaintiff’s husband disappeared and was unfound till the date of filing of the suit. He has left behind the plaintiff and two sons by name Chikkanagowda and Siddagangaiah. From the date of purchase, plaintiff is in exclusive possession and enjoyment of the property paying

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khandayam to the Government. Defendants who are utter strangers have started interference to the schedule property and peaceful possession of the plaintiff.

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Defendants contended that husband is not absconding. It is only with a malafide intention such kind of averments is made. It is also stated that plaintiff is entitled for only 3 acres 5 guntas in both Sy.no.141/3 and 141/5. But in Sy.no.141/3 she has stated she is entitled for 3 acres 9 guntas and the land is attempted to be encroached by the defendants, hence she has filed the suit.

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The learned trial Judge has framed the following

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issues:

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Whether the plaintiff proves her lawful possession over the suit schedule property as on the date of the suit?

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Whether the plaintiff proves the alleged interference by the defendants?

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Whether the plaintiff is entitled for permanent injunction as prayed for?

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What order or decree?

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The learned trial Judge was accommodated with oral evidence of PW1-Gowramma and documentary evidence at Ex.P1-Original sale deed, Ex.P2-Sale deed, Ex.P3-Certificate, Exs.P4-6- Kandayam paid receipts, Ex.P79-Certified copy of RTC extracts, Ex.P10-Certified copy of M.R, Ex.P11-Sketch and oral evidence of DW1-Rudranna and DW2-Chandregowda and documentary evidence at Exs.D1-D2 – Certified copy of the RTC extracts and Ex.D3D4 – Sale deeds.

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On conclusion, the learned trial Judge came to

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the conclusion that plaintiff was in possession and was entitled to file a suit and has decreed the same as prayed for in respect of the schedule property mentioned therein, which is as under:

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Land bearing Sy.no.141/3 including the kharab of 3.09 guntas consists of 51 coconut tress, 16 tamarind trees, one Hippe tree, 3 Nerale trees, assessed at Rs.3-41 of Manuvanakurke, C.N.Durga Hobli, Karatagere Taluk bounded as follows:

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East by : Defendant land West by : Channabasavaiah North by : Tank Bund South by : Adavappa and others

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The appeal was preferred by the defendants in RA No.145/2005 before the learned Civil Judge, Senior Division, Madhugiri. The said appeal came to be dismissed on 01.09.2006 confirming the judgment and decree passed by learned Judge, Junior Division, Koratagere.

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The matter was admitted on 10.07.2009 and the following substantial question of law was framed:

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“Whether the Courts below are right in holding that the respondent/plaintiff is in possession of the land in question bearing Sy. No.141/3, measuring 3 acres 9 guntas based on the sale deed-Ex.P1 though

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the vendor under Ex.P1 had title only to the extent of 3 acre 4 guntas in Sy. No.141/3?”

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In the facts and circumstances of the case, I propose

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to frame one more substantial question of law as under:

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Whether even when the husband is in dispute and later seen, does it debar or disqualify the wife from filing the suit for injunction against the third party?

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The substance of the case is that 3 acres 5 guntas of land of Gangamma was purchased by Chandregowda out of total extent of 4 acres 5 guntas in Sy.no.141/3 and 145/5 retaining 1 acre towards the East.

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Learned counsel Sri.N.S.Prasad appearing for appellants submits that apart from the material already on record, he filed application under Order 41 Rule 27 of CPC and also relies on the decision in the case of Uttaradi Mutt

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V/s Raghavendra Swamy Mutt reported in (2018) 10

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SCC 484 which reflects all his submission with documents

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which are in possession when it could not be filed despite of due diligence may be permitted to file at appellate stage also. In the ends of natural justice, I find there is no embargo for allowing the application accordingly,

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application is allowed. Documents are taken on record and perused the same.

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Learned counsel for respondent absent.

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Now the question is regarding existence and non

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existence of the husband of the plaintiff. Here it is a peculiar case and it is stated that the property was purchased by one Basavaraju M.S under Ex.P1 dated 25.05.1992 wherein the sellor is one Gangamma who had purchased earlier from Chandregowda. The possession of schedule property mentioned under sale deed was handed

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over to the husband of plaintiff. All rights attached thereto

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were conveyed in respect of schedule property. The

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learned counsel submits that it is unheard that when husband is very much available wife files a suit claiming that possession in injunction suit stating that husband has gone out and has not come. Learned counsel for defendant further submits that under Section 108 of Indian Evidence Act, if a person is not heard or seen from the place where he could have seen or heard for seven years, he is presumed to be dead. Thus, learned counsel further submits that malafide interest has to be gathered from the act of plaintiff in claiming relief of injunction claiming her husband is not seen.

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The learned counsel further submits that claim of

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the plaintiff is transgress 5 guntas of land over and above were purchased by the husband of the plaintiff. Ex.P1 sale deed filed by the plaintiff is in Kannada language since, I am acquainted with the said language, I am translating it as, land situated at Manuvinakere Village, Tovinakere

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Mandal, Rayadurga Hobli, Koratagere Taluk bearing

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Sy.no.141/3, dry land extent 3 acres 4 guntas and 5 guntas kharab Jumla 3 acres 9 guntas being bounded on the East by : land of Chandregowda, West by : land of Channabasaiah, North by : Lake yard, South by : Adavappa and others.

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Thus, from the tone and tenor of the submission of the learned counsel for appellants, plaintiff is claiming more than what was entitled for. Agreeing with learned counsel for defendant that when a person is not seen or heard from the quarters known to have seen or heard is presumed to be dead. But it is not the matter of one day or four years it must be continuously for seven years.

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Further, the appellant raises serious objection and the documents filed by him along with application goes to show that in the year 2004 M.S.Basavaraju was very much alive and present and he has also made application on

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24.05.2004 requesting for survey of Sy.no.141/3. Mahazar is also mentioned. Affidavit is also filed in support of the application. Thus neighbour of the land namely Omkaramma has also signed. Thus learned counsel vehemently submitted that when the husband was alive wife filing a suit stating that he was not available and absconding tells about her conduct.

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The second contention is regarding the extension of land was purchased by the husband of plaintiff as stated above, the vendor Gangamma has purchased from the previous owner under Ex.P2.

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The schedule mentioned in Ex.P1 sold in favour of the husband of the plaintiff is already mentioned above. The details are explained as land measuring 3 acres 5 guntas being bounded by on the East by : land of the vendor, West by : land of Chennabasanna, North by : Lake

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Yard, South by : land Kalappa. However in the sale deed Ex.P1 including kharab, it is stated as 3 acres 9 guntas. When there is conflict between the sale deeds produced by the parties the only yard stick available is to peruse RTC.

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Ex.P7 is RTC extract of Sy.no.141/3. The total

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extent of the land is shown as ‘3 acres 9 guntas’ and in kharab and cultivator column it is shown as ‘3 acres 4 guntas’. For the year 1986-87 and for the year 2000-01 same is repeated and khata holder is shown M.S.Basavaraju husband of plaintiff. Latest mutation extract is of the year 2003-04 wherein the total extent is shown as 3 acres 9 guntas and foot kharab is shown as 5 guntas.

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Insofar as documents filed by the defendant is concerned it is RTC extract for the year 1966-67, there also extent of Sy.no.141/3 is shown as 3 acres 4 guntas. Ex.D2 is RTC extract of the land of Chandregowda in Sy.no.141/5

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which is not relevant to this case and insofar as land purchased under Ex.D3 is 1 acre.

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The above being the circumstances, the term

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kharab is a Urdu word. If it is translated into English, kharab means non unsuitable for the purpose of agriculture.

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Regarding RTC extract is concerned there are various columns, column No.1 for Survey Number, column No.2 for Sub Division, column No.3 for extent, column No.4 for assessment like wise ownership and details are shown in other columns. In RTC filed by the plaintiff states that Sy.no.141/3 is measuring to the extent of 3 acres 9 guntas of land out of which 5 guntas is kharab. Kharab land which means bad land not suitable for agriculture.

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There are different kinds of kharab such as road, space for road which is not meant for cultivation and it is not cultivable, in rocky area containing neither rock or

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stone and there is no question of breaking this 5 guntas. The rule is kharab attached to a particular land always goes along with main.

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When all the documents clearly shows the contention of the defendants that the plaintiff is not entitled for land of 3 acres 9 guntas with 5 guntas of kharab cannot be accepted.

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Further, it is a case wherein, wife files a case stating that her husband is not available and cannot be seen whether absconding or deserted as the case may be and she has two sons also claims that she is in possession of the schedule property. She claims that her husband has unfortunately gone out and unavailable. Even during this period if there is interference to the schedule property plaintiff claims to be in possession or even otherwise her husband is the owner of the property. Under the

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circumstances, absolutely there is no wrong in wife filing a suit for the schedule property which belongs to her husband. Regard been had to the fact that she has not filed suit against her husband or against his interest nor it is collusive to the property. There is no infirmity or illegality in the judgment and decree dated 17.10.2005 passed in O.S No.96/2004 by learned trial Judge and judgment and decree dated 01.09.2006 passed in RA No.145/2005 by the First Appellate Court and the appeal is devoid of merits and it is liable to be dismissed. The substantial questions of law are answered accordingly.

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For the aforesaid reasons, the appeal is dismissed.

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Sd/-

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Rudranna S/O Veeranna v. Smt Gowramma W/O M S Basavaraju

Case brief

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Rudranna S/O Veeranna v. Smt Gowramma W/O M S Basavaraju

Case brief

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