Allowed

Thimmegowda @ Annegowda S/O Appaji Gowda v. Sri Rajagopal S/O Narasimhe Gowda

Karnataka HC15 Jan 2021RFA/1211/2005

Case brief

AI extract

What is this about?

The High Court set aside a trial court decree decreeing ownership and injunction in a property suit. It found the trial court overlooked case records showing the disputed property was sold via court auction, rendering the lower court's reliance on a registered Will perverse and the judgment liable to be set aside.

What did the court decide?

The judgment and decree dated 30.05.2005 passed in O.S.No.12/98 are set aside and the suit of the plaintiff is dismissed.

Thimmegowda @ Annegowda S/O Appaji Gowda Vs Sri Rajagopal S/O… — Partition | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 15^TH DAY OF JANUARY, 2021

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BEFORE

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

R.F.A.No. 1211/2005

C/W

R.F.A.No.1219/2005

R.F.A.No.1211/2005:

BETWEEN:

THIMMEGOWDA @ ANNEGOWDA S/O APPAJI GOWDA SINCE DEAD BY HIS LRs.

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1a. SRI A PRAKASH S/O LATE THIMMEGOWDA @ ANNEGOWDA AGED ABOUT 46 YEARS R/AT NIDAGHATTA VILLAGE ATHAGUR HOBLI MADDUR TALUK, MANDYA DISTRICT – 571 428.

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..APPELLANT

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(BY SRI V B SHIVAKUMAR, ADVOCATE)

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AND:

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1 . SRI RAJAGOPAL S/O SRI NARASIMHE GOWDA AGED ABOUT 61 YEARS R/A.NO.862/B, THANTHI BEEDHI CHANNAPATNA – 571 501.

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2 . SRI NAZRULLA KHAN GHORI S/O SRI BHURAN KHAN GHORI MAJOR, R/A.GHORI MANZIL BANGALORE- MYSORE ROAD CHANNAPATNA TOWN – 571 501.

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3 . SRI P MOHAMMED ILIYAS S/O.SRI B.PACHU MIYA, MAJOR, R/A.NO.1550,NIZAMI CHOWK CHANNAPATNA TOWN – 571 501.

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4 . THE CITY MUNICIPAL CORPORATION BY ITS CHIEF OFFICER CHANNAPATNA TOWN CHANNAPATNA – 571 501. ..RESPONDENTS

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(BY SRI T SESHAGIRI RAO, ADVOCATE FOR R-1, SRI A V GANGADHARAPPA, ADVOCATE FOR R-4, R2 AND R3 ARE SERVED)

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THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41 RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED:30.05.2005 PASSED IN O.S.No.12/1998 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE (SR.DN.), RAMANAGARAM, DECREEING THE SUIT FOR DECLARATION AND PERMANENT INJUNCTION.

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R.F.A.No.1219/2005:

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BETWEEN:

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1 . SRI NAZRULLA KHAN GHORI S/O SRI BHURAN KHAN GHORI MAJOR, R/AT GHORI MANZIL BANGALORE-MYSORE ROAD CHANNAPATNA TOWN – 571 501.

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2 . SRI P MOHAMMED ILLIYAS S/O SRI B.PACHU MIYA, MAJOR

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R/AT No.1550, NIZAMI CHOWK CHANNAPATNA TOWN – 571 501. ..APPELLANTS

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(BY SRI V B SHIVAKUMAR, ADVOCATE)

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AND:

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1 . RAJAGOPAL S/O SRI NARASIMHE GOWDA AGED ABOUT 61 YEARS R/AT NO.862/B, THANTHI BEEDHI CHANNAPATNA – 571 501.

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2 . SRI THIMMEGOWDA @ ANNEGOWDA S/O SRI APPAJI GOWDA AGED ABOUT 86 YEARS REP. BY P.A.HOLDER SRI A PRAKASH S/O SRI.THIMMEGOWDA @ ANNEGOWDA AGED ABOUT 40 YEARS, R/AT NIDAGHATTA VILLAGE ATHAGUR HOBLI, MADDUR TALUK MANDYA DISTRICT – 571 428.

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3 . THE CITY MUNICIPAL CORPORATION BY ITS CHIEF OFFICER CHANNAPATNA TOWN CHANNAPATNA – 571 501. ..RESPONDENTS

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(BY SRI T SESHAGIRI RAO, ADVOCATE FOR R-1, V/O DATED 21.08.2012 APPEAL AGAINST R2 IS ABATED, R3-SERVED)

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THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41 RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED:30.5.2005 PASSED IN O.S. No.12/1998 ON THE

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FILE OF THE ADDITIONAL CIVIL JUDGE (SR.DN.), RAMANAGARAM, DECREEING THE SUIT FOR DECLARATION AND PERMANENT INJUNCTION. THESE APPEALS COMING ON FOR DICTATING JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Appeals are directed against the Judgment and decree dated 30.05.2005 passed in O.S.No.12/98 wherein the suit of the plaintiff was decreed with costs and plaintiff is declared to be the owner of the suit property and order of permanent injunction is also granted. Being aggrieved by the said Judgment and decree defendant Nos.1 and 3 have come in appeal.

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2. Thimmegowda, defendant No.3 has come in

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appeal in RFA No.1211/2005. The defendant No.1 Nasarulla Khan Ghori has come in appeal in RFA No.1219/2005.

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3. As the subject matter in both the matters is

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interrelated they are taken up together for common disposal.

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In order to avoid confusion and overlapping,

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parties in each case are referred in accordance with the rankings as held by them before trial court and in necessary areas they are also addressed by their names personally.

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The facts of the case as presented in O.S.No.12/98 by the plaintiff –Raja Gopal is that he is the absolute owner of property bearing municipal khatha No.862/2 to 4 and khata No.1020 measuring East to West on north 32 feet, on south 9 feet, NorthSouth on East 115 feet, on West 90 feet (32+9/2x115+90/2) situated at Thanti Beedhi, Channapatna Town.

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The plaintiff filed O.S.No.12/98 before the

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learned Additional City Civil Judge, Senior Division at Ramanagaram stating that he inherited the property from Nagamma @ Thayamma as it originally belonged to her. The plaintiff also claims that he is the adopted son of late Nagamma. Further he claimed that the said Nagamma executed a registered Will dated 31.03.1954 bequeathing the schedule property along with other properties. It is also stated that the plaintiff is exclusive successor of the ownership of the said properties that includes the suit schedule property.

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The defendants are four in number: (1) Nasarulla Khan Gori (2) P.Mohammed Iliyas (3) Thimme Gowda and (4) City Municipal Corporation, Channapatna Town. In the course of the pleadings by Thimme Gowda, third defendant tells that the

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schedule property belonged to him and he sold it to first defendant and second defendant under two sale

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deeds dated 07.12.95.

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It is stated that one Sri. Puttaswamy Gowda is

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the husband of one Nagamma, he was very much indebted. The appellant being the creditor had obtained decree and executed the same. In the execution proceedings, the schedule property along with other properties were brought to sale through Court auction. Thimmegowda – the third defendant purchased the said property in court auction in the year 1926-1927 on 19.05.1927 as per the decree drawn in O.S.No.43/1926-1927. It is further stated that Smt.Nagamma had filed O.S.No.329/1981 on the file of Munsiff and JMFC, Ramanagar and which matter subsequently transferred to Munsiff, Channapatna and the said suit was later numbered as O.S.No.90/1987

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in respect of property bearing Municipal No.883 ‘B’ Division, Edigara Street, Channapatna Town over the same set of facts.

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It is further submitted that in the said suit there was a clear finding that the property belonged to Sri Puttaswamy Gowda were sold in a court auction in favour of Thimmegowda @ Annegowda. It is by virtue of the said court auction, the appellant in RFA No.1211/2005 became the absolute owner of the properties purchased in court auction which includes the schedule property. It is also stated that the appellant/defendant No.3 had sold the schedule property in favour of defendant Nos.1 and 2 on 07.12.1995. The plaintiff – Raja Gopal claims that her mother - Nagamma had executed the Will in his favour and which is denied by the appellant. Fourth defendant is the statutory body - City Municipal Corporation.

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The learned trial judge was accommodated with oral evidence of PW.1 – Rajagopal and documentary evidence of Ex.P1 – C.C. Sale deed, Ex.P2 – Khata Endorsement, Exs.P3 and P4 – Assessment Extracts, Ex.P5 – Delivery receipt in HRC No.21/80, Ex.P6 – Possession Receipt, Ex.P7 – Paper Publication, Ex.P8 – Order Copy of D.C, - Ex.P9 – C.C. of sale deed, Ex.P10 – Mahazar, Ex.P11 – Mortgage Deed, Ex.P12 - Receipt for redemption, Ex.P13 – Rent Note dt.24.12.90, Ex.P14 – Rent Note dt.19.11.91, Ex.P15 – Rent Note dt.22.08.90 and Ex.P16 – Rent Note dt.30.09.94 on behalf of plaintiff and on behalf of defendants, oral evidence of DW.1 – Nasrullla Khan Gori and documentary evidence Exs.D1 to D39 were produced.

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The trial Judge found that the execution of sale deed dated 7.12.1995 by defendant No.3 - Thimmegowda @ Annegowda in favour of defendant

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Nos.1 & 2 is not binding. It is the further observed by

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the learned trial judge that the name of defendant No.3 was deleted and name of plaintiff was mutated. It is also further observed that in the year 1991-1992, the name of plaintiff was deleted and name of defendant No.3 was re-instated back as per Ex.P4.

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The learned trial judge also observed that transfer of khatha from the name of defendant No.3 to defendant Nos.1 and 2 is bad in law. Thereafter, he also observed that there is absolutely no record of evidence to establish that the plaintiff or his adopted father has lost this property through court auction, which means it appears that the trial judge finds that there is no court auction, wherein, the plaintiff – Rajagopal or his father – Puttaswamy Gowda lost this property under court auction. The learned trial judge also has found that no document was produced regarding the court proceedings to hold that the

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schedule property was sold along with other properties in execution of a money decree in Execution No.2008/1926-1927 connected to O.S.No.43/1926-1927 and also there is no much discussion on Ex.D16 – the judgment and decree passed in O.S.No.90/1987 (old No.329/81) by the trial Court.

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In the sum and substance of the matter, the learned trial judge has concluded that the details of document regarding court auction are not produced and the husband of Nagamma never lost ownership through court and the contention raised by the defendants in this connection, is of no avail to them, as plaintiff – Rajagopal through his mother - Nagamma derived the rights of ownership and possession.

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Sri. V.B.Shivakumar, learned counsel for

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appellant - Thimmegowda in RFA No.1211/2005 and appellants – Nazrulla Khan Ghori and Mohammed Iliyaz in RFA No.1219/2005 submits that the trial court could have referred to the documents filed by defendant Nos.1 to 3 - Nazrulla Khan Ghori, P.Mohammed Iliyas and Thimmegowda and the entire court proceedings in O.S.No.329/1981 on the file of Munsiff, Ramanagar and later the same got transferred to Munsiff, Channapatna renumbered as O.S.No.90/1987. He would also stress seriously that Ex.D16 - the certified copy of O.S.No.90/1987 (old No.329/1981) on the file of Munsiff, Channapatna is of legal proceedings and contains the details about the earlier proceedings.

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Learned counsel Sri. Sheshagiri Rao for plaintiff – Rajagopal, who is respondent No.1 herein would submit that schedule property never belonged to

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Thimmegowda @ Annegowda. Sri.Rajagopal is the adopted son of Nagamma who is the wife of Puttaswamy Gowda were in possession and they were doing well and defendant Nos.1 to 3 namely, Nazrulla Khan Ghori, Mohammed Illiaz and Thimmegowda are harassing the plaintiff in one way or the other. It is also submitted that the description of the property mentioned in the plaint by the plaintiff and claimed originally by the defendants do not tally with each other.

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As a matter of fact, when the certified copy of the older documents are not available or it could be traced, any other earlier legal proceedings, but subsequent to old proceedings becomes relevant for getting the details of earlier - (old) legal proceedings provided, the material facts of the old proceedings are mentioned. In this connection, the reading has to be very careful regarding the proceedings. More

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particularly when the details of old

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document/proceedings are coming through the

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certified copies, they are as good as originals in the facts and circumstances.

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The present suit is O.S.No.12/1998. In this case, the details regarding O.S.No.43/1926-1927 and Execution proceedings in Ex.No.2008/1926-1927 are required and they are stated to be the proceedings in O.S.No.90/1987 (old No.329/1981). Thus, from here

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what is discussed is regarding O.S.No.90/1987 filed by Nagamma against Raju and Ismail Khan on the file of Munsiff and JMFC, Channapatna.

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The schedule mentioned in O.S.No.90/1987 (Old No.329/1981) is as under:

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“Municipal No.883, ‘B’ Division, Edigara Street, Channapatna Town, bounded on:

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East : house of Papanna and

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Sreenivasa

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West : house sold to Buran and Sheriff Sab and passage of 7’ in between these two portions sold Buran and Sheriff,

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North: House of T.Thimmaiah and Sreenivasa

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South: House of Buranuddin.

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Ex.P1 is the copy of the Will available in the original records and it is the Will executed by Nagamma, wherein, she succeeded to the properties of her husband and executed the Will of schedule property and other properties in favour of Rajagopal - plaintiff. Nagamma died on 28.12.1988 wherein, the Will came into effect. The property bequeathed by Nagamma in favour of Rajagopal are:

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Mangalore Tile Roofed four ankanas house being bounded on east by Syed Hussain’s house, west by Kondamma’s house and backyard Sathnur road, North by Government

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road and South by Syed Siraj Saheb of Channapatna.

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Item No.1 is the tiled house- varanda and adjoining thotti house vacant site with door facing, west.

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Land in Sy.No.127 measuring to an extent of 1 acre 22 guntas, situated at Sunnagatta village, Kasaba Hobli, Channapatna Taluk, bounded on east by Sathnuru Road, west by – Chikkavenkatappa’s land, north by Chikkavenkata’s land and south by road to Neelakantahalli. Were bequeathed by Nagamma in favour of Rajagopal - plaintiff.

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The schedule properties are claimed by the plaintiff – Rajagopal as item No.1.

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In the judgment passed in O.S.No.90/1987 (old

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No.329/1981) dated 16.07.1986 at Paragraph No.18,

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the learned trial judge has considered the material point which is as under:

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“18. It is material to note that the properties purchased under EX.D14 are as many as 19 properties of the plaintiff among which the suit property is Item No.1. If the auction purchaser had not taken steps to secure those properties or if all these properties remained with plaintiff, she would have produce any evidence to show that she remained in possession of other properties also which were subject matter of auction sale. For a moment we can forget about the suit property. What happened to other 18 properties which were put to auction sale? The plaintiff has not produced any piece of evidence to show that she continued in possession of those 18 properties even though they were put to auction sale. She has merely stated that out of the properties got from her husband she has sold some of the portion to one Sheriff

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and Buran, but there is no documentary evidence nor those persons are summoned as her witnesses. On the other hand, Ex.P1, the office copy of the notice reveals that she is issued notice to both Sheriff and Buran along with D-1 and D-2 contending that the D-1 has inducted those tow persons along with D-2 unlawfully. There is no iota of evidence to presume that the plaintiff retained or continued in possession of any of the properties put to auction sale under Ex.D14 after the auction sale. On the other hand the plaintiff herself admits that the name of Annegowda came to be recorded in the Municipalty to the suit property right from the purchase till filing of this suit. Ex.P4 to P.8 also reveals the name of Annegowda s Khatedar of the suit property so also Ex.P.9 disclose the name of Annegowda prior to the name of plaintiff.”

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In other words to say, the properties were not brought to the auction and were not stopped or sale conducted was not sought to be set aside by depositing the decreetal amount or otherwise, there was no claim nor sale certificate.

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Ex.D22 is certified copy of miscellaneous cases register in Mis case.No.175/29-30 on the file of Principal Subordinate Judge, Bengaluru and the possession is stated to have been delivered. It is the sale certificate and by that time, the property stated to have been passed out of reach. Ex.D10 is the sale deed stated to have been executed by Thimmegowda S/o. Appajigowda on 7.12.1995, wherein, it is stated that Channapatna Town Municipality ‘B’ division No. – 862:2 to 862:4, (municipal katha No.1020) vacant site acquired by him in the court sale in O.S.No.43/1926-1927 dated 19.05.1927, he

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purchased the same in the open auction and has been

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paying the taxes regularly and he has sold the same to the purchasers – P.Mohammed Iliyaz S/o. B.Pachu mia. Ex.D9 is the sale deed dated 21.04.1983 executed in favour of Nagaraj S/o. Puttaswamaiah, by Thimmegowda. It is bearing No.862/1. Thus, out of properties 862/1 to 4 were disposed of by Thimmegowda @ Annegowda under Exs.D9 and D10.

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By virtue of Exs.D9 and D10, while mentioning Civil case number, execution number and other details, the house number, it is stated as 862/1, 862/2 to 4. It is pertinent to see that these are the same properties which is claimed in the plaint. Incidentally, site No.862/1 is not claimed. It is to be seen that Exs.D9 and D10 are the sale deeds wherein under Ex.D10 katha No.862/2 to 4 is sold and under Ex.D9 - 862/1 is sold.

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Meanwhile, it is necessary to mention HRC No.1/1999 is a petition filed on the file of Civil Judge, (Jr.Dn.) & JMFC, Channapatna by Rajagopal against respondent – Shaik Mahaboob under Section 21(a) of Karnataka Rent Act. Similarly, 2/1999 was filed by Rajagopal against Syed Ahmed, in 3/1999, against Ziaulla and 4/1999 against Noor Khan @ Noor Pasha. These HRC petitions were filed seeking eviction. Ex.D22 is the certificate showing delivery of possession in Mis.Case No.175/29-30 in favour of Thimmegowda, Puttasamegowda and respondent – Nagamma. In the said eviction petition, HRC cases, the respondents have stated that they were not the tenants and there is no jural relationship and the said documents are marked as Exs.D23 to D39. Nothing more is forthcoming from either of the parties none of these are materials to be considered.

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If the trial court had concentrated on Ex.D16 - the judgment and decree in O.S.No.90/1987 (old No.329/1981) entire details regarding earlier suit O.S.No.43/26-27 would have brought into light and if thrown light on the said proceedings, wherein, the court sale was held and properties of Nagamma were auctioned and plaintiff and defendants claim site No.862/2 to 4. Earlier the suit property number was stated as 883. All those properties were sold under the Court auction under the sale deed as per Exs.D21. Thus, Ex.D21 - court sale deed and HRC proceedings are Ex.D23 to D39. Ex.D22 – miscellaneous case relating to delivery of possession would have opened the details. Thus, it was a gross and grievous error on the part of the trial court to have overlooked Ex.D16 which contains court proceedings on the original side, execution side, sale transaction, delivery of possession, details of the purchase made by the grand

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father of present defendant – Thimmegowda and father of defendant No.3.

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In the circumstances, I find, the judgment and decree dated 30.05.2005 passed in O.S.No.12/1998 is capricious, perverse, incomplete, irregular and it is liable to be set aside. Accordingly, it is set aside. Consequently, suit of the plaintiff is dismissed. The appeals preferred by defendant Nos.1 and 3 are allowed.

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Sd/JUDGE

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SBN/HJ

Thimmegowda @ Annegowda S/O Appaji Gowda v. Sri Rajagopal S/O Narasimhe Gowda

Case brief

What is this about?

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Thimmegowda @ Annegowda S/O Appaji Gowda v. Sri Rajagopal S/O Narasimhe Gowda

Case brief

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What did the court decide?

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