Dismissed

H T Nagesh v. N Raju

Karnataka HC30 Aug 2021RSA/1097/2013

Case brief

AI extract

What is this about?

The High Court dismissed an appeal under Section 100 CPC challenging a judgment in a property dispute. The court held that Survey Nos. 72, 155, 42/1, and 42/2 represent the same land. Since no substantial question of law or fact was made out, the appeal was dismissed at the admission stage.

What did the court decide?

Appeal dismissed at the stage of admission for failure to make out a substantial question of law or fact.

H T Nagesh Vs N Raju — Partition | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 30^TH DAY OF AUGUST, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE E.S. INDIRESH

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REGULAR SECOND APPEAL NO.1097 OF 2013

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BETWEEN:

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H T Nagesh S/o late Thimmaiah Aged about 50 years R/o Hebbale Village Somarpet Taluk Kodagu District-571 201.

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Venkataramana Reddy S/o late Reddy Puttappa Aged about 62 years R/o Maroor Hebbale Village Somarpet Taluk Kodagu District-571 201.

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…Appellants

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(by Sri Narasimharaju, Advocate)

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AND:

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N Raju

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Since deceased, repd. by his LRs.

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1b. Miss Geetha

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D/o late N Raju Aged about 22 years R/o Sulekote village Doddakamaravalli Post Periapatna Taluk Mysuru District-570 001.

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1c. Miss Nandini

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D/o late N Raju Aged about 21 years R/o Sulekote village Doddakamaravalli Post Periapatna Taluk Mysuru District-570 001.

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The Chief Secretary Zilla Panchayath Kodagu Madikeri-571 201.

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The Secretary Hebbale Village Panchyath Hebbale Kushalnagar Hobli Sowmarpet Taluk Madikeri-571 201.

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…Respondents

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(by Sri C R Gopalaswamy, Advocate for R1(b) and (c); R2 and 3 are served and unrepresented)

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This Regular Second Appeal is filed under Section 100 of the Code of Civil Procedure against the judgment and decree dated 08^th March, 2013 passed in Regular Appeals No.5 & 6 of 2011 on the file of the District and Sessions Judge, Kodagu, Madikeri, dismissing the Regular Appeal No.6 of 2011 and partly allowing the Regular Appeal No.5 of 2011 filed against the judgment and decree dated 04^th December, 2010 passed in OS No.3 of 2001 on the file of the Senior Civil Judge at Madikeri. This Appeal coming on for admission, this day, the Court delivered the following:

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JUDGMENT

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This appeal is filed by defendants 1 and 2, challenging the judgment and decree dated 08^th March, 2013 in Regular Appeals

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No.5 and 6 of 2011 on the file of District and Sessions Judge, Kodagu, confirming the judgment and decree dated 04^th December, 2010 in Original Suit No.3 of 2001 on the file of the Senior Civil Judge at Madikeri, decreeing the suit of the plaintiff.

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For the sake of convenience, parties in this appeal are referred to with respect to their ranking before the trial Court.

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It is the case of the plaintiffs that father of plaintiffsNanjappa had purchased the suit schedule property from Okkaligara R. Thimmappa through a Registered Sale deed dated 20^th April, 1955 and pursuant to same, he is in possession of the suit schedule property. It is further averred in the plaint that the said Okkalagira R. Thimmappa had purchased twenty cents of land from Reddy Puttappa of Hebbale village through a registered sale deed dated 02^nd November, 1955 and out of the said twenty cents, father of the plaintiff had purchased fifteen cents and remaining five cents was sold in favour of Hanumappa of Hebbale village. It is further averred in the plaint that, in the sale deed executed by Reddy Puttappa in favour of Okkalagira R. Thimmappa (father of plaintiff), the survey Number of property was mentioned as 72 of Hebbale village, however, while executing the sale deed, it was notified as Survey No.155 and

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the survey number of the schedule property has been changed and Survey number 42/1 measuring nineteen cents and Survey No.42/2 measuring one cent of Block No.2 of Hebbale Grama Panchayat in terms of the Jamabandhi Register. It is further averred in the plaint that the defendant No.2 intended to sell the suit schedule property in favour of defendant No.1 alleging that the suit schedule property belong to him and having got to know about the same, the plaintiffs have filed Original Suit No.3 of 2001 on the file of the trial Court.

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On service of notice, defendants entered appearance, and filed a detailed written statement contending that survey No.72; Survey No.155; Survey No.42/1 and Survey No.42/2 are different and the plaintiffs have no right or title insofar as the suit schedule properties. The defendants entered appearance and filed detailed written statement denying the averments made in the plaint. It is the contention of the defendants that the plaintiffs have nothing to do with nineteen cents in Survey No.42/1 and one cent in Survey No.42/2 and these properties are in the possession of defendant No.2 who is the father of the vendor of the plaintiff. The defendants have also contended that defendant No.2 is in possession of the said land, after the

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demise of his father and therefore, sought for dismissal of the suit.

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Plaintiffs filed counter to the written statement filed by the defendants and contended that the claim made by the defendants is not maintainable as the schedule property is a self-acquired property of the father of the defendant No.2 and he has sold the same to one Okkaligara Thimmappa, as stated in the plaint. The trial Court, after considering the pleadings on record, formulated the following issues for consideration.

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1. Whether the plaintiff proves that, he is the absolute owner of suit schedule property?

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2. Whether the plaintiff proves that on 12.12.2000 the 1^st defendant trespassed into the suit schedule property and took forcible possession of the same?

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3. Whether the plaintiff proves that the 1^st defendant has collected building material to construct house in the suit schedule property?

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4. Whether defendant No.2 proves that he is the absolute owner in possession and enjoyment of counter-claim schedule property?

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5. Whether the defendant No.2 proves the alleged interference by plaintiff?

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6. Whether the plaintiff is entitled for reliefs as prayed for?

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7. Whether the defendant No.2 is entitled for reliefs as prayed in counter-claim?

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8. What order or decree?

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The legal representative of the plaintiffs have examined one witness as PW1 and produced 18 documents and same were marked as Exhibits P1 to P18. The defendants have examined two witnesses as DW1 and DW2 and produced three documents and the same were marked as Exhibits D1 to D3.

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I have heard Sri Narasimharaju, learned counsel for the appellant and Sri C.R. Gopalaswamy, learned counsel for respondent Nos.1(b) and (c).

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Sri Narasimharaju, learned counsel appearing for the appellant contended that both the courts below have not properly appreciated the fact that the dispute is with regard to five cents of land and both the courts below are of the assumption that the father of the second appellant has sold the schedule property in favour of Thimmappa and in turn, the said Thimmappa has sold the property in question in favour of father of respondents 1(b) and (c). He further contended that the

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plaintiffs have not produced any documents to prove the boundaries and the source of title, however, both the courts below have arrived at a conclusion that the plaintiff is entitled for relief of declaration, which is contrary to law. The finding recorded by both the courts below that Survey No.72, 155, and Survey No.42/1 and 42/2 are one and the same is incorrect and contrary to the documents viz. Exhibits D1 to D3 and therefore, he contended that the finding recorded by both the courts below requires interference in this appeal.

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Per Contra, Sri C R Gopalaswamy, learned counsel appearing for the respondent submitted that both the courts below, on facts, have held that the plaintiff has proved the title insofar as the suit schedule property and the same cannot be disturbed in this appeal. He further contended that Exhibit P2Sale deed dated 21^st December, 1954, is the basis to consider the title of the plaintiff and same was proved by the plaintiff along with the sale deed dated 02^nd November, 1953 (Exhibit P3) and in that view of the matter, the properties sold under Exhibits P2 and P3 are one and the same and the remaining portion was sold under Exhibit P7 and therefore, no interference is called for in this appeal.

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Having heard the learned counsel appearing for the parties, perusal of the record would indicate that the land admeasuring twenty cents in Survey No.72 of Hebbale village belong to Reddy Puttappa who is the father of the defendant No.2, who sold the same by way of registered sale deed dated 02^nd November, 1953 in favour of Okkaligara Thimmappa. Out of twenty cents of land, the said Okkaligara Thimmappa sold fifteen cents in favour of one Nanjappa (father of the plaintiff) through registered sale deed 20^th April, 1955. The remaining five cents of land was sold to one Hanumappa. It is the case of the plaintiff that he is in possession and enjoyment of the land measuring fifteen cents in Survey No.72 of Hebbale Village and Ooruguppe revenue Survey No.155. The main controversy between the parties is that whether Survey No.72; Survey No.155; and Survey Nos.42/1 and 42/2 are one and the same or not.

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In this regard, I have carefully considered the

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pleadings on record and the evidence adduced by the parties. Perusal of the testimony of PW1 would indicate that Survey No.155 measuring fifteen cents, and land bearing Survey No.41/2 measuring 19 cents and Survey No.42/2 measuring one

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cent, originally belong to Reddy Puttappa of Hebbale village, who owned twenty cents of land. Perusal of the Exhibit P5Jamabandi Register would indicate that the Survey No.155 and Survey Nos.41/1 and 42/1 arise out of the original Survey No.72. In his evidence, DW1 also admits that the Survey Nos. 72, 155, 42/1 and 142 are one and same. The said testimony of DW1 reads as under:

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“ºÉ¨Áâ¯ï UÁæªÀÄzÀ ¸À.£ÀA.72 ºÉ¨Áâ¯ï £ÉÆÃn¥sÉÊqï JjAiÀiÁzÀ ¸À.£ÀA. 155 ºÁUÀÆ ºÉ¨Áâ¯ï UÁæªÀÄ ¥ÀAZÁ¬Äw ¸À.£ÀA.42:1 ºÁUÀÆ ¸À.£ÀA.42:2 J®è MAzÉÃ D¹ÛUÉ ¸ÀA§AzsÀ¥ÀlÖzÀÄÝ JAzÀgÉ ¤d. CzÉÃ F zÁªÁ D¹Û JAzÀgÉ ¤d. zÁªÁ D¹ÛAiÀÄ GzÀÝ CUÀ® 85 * 35 CrUÀ¼ÀÄ JAzÀgÉ ¤d. ¤¦-2 ªÁ¢AiÀÄ vÀAzÉUÉ ¸ÉÃjzÀ PÀæAiÀÄ ¥ÀvÀæzÀ zÀÈrüPÀvÀ ¥Àæw JAzÀgÉ ¤d. F PÀæAiÀÄ ¥ÀvÀæzÀ DzsÁgÀzÀ°èAiÉÄÃ ªÁ¢AiÀÄÄ D¹ÛAiÀÄ ªÉÄÃ¯É ºÀPÀÄÌ PÉÃ¼ÀÄwÛgÀÄªÀÅzÀÄ JAzÀgÉ ¤d. ¸ÁQëAiÀÄÄ DzÀgÉ EzÀÄ ¨ÉÃgÉ eÁUÀPÉÌ ¸ÀA§AzsÀ¥ÀnÖzÀÄÝ J£ÀÄßvÁÛgÉ. ¤¦-2gÀ°è PÁtÂ¹zÀ ¸À.£ÀA.155 ¨ÉÃgÉ EzÉ. £ÀªÀÄä eÁUÀPÀÆÌ EzÀPÀÆÌ ¸ÀA§AzsÀ E®è. J£ÀÄßvÁÛgÉ. £ÀªÀÄUÀÆ ªÁ¢AiÀÄjUÀÆ vÀPÀgÁgÀÄ EgÀÄªÀÅzÀÄ MAzÉÃ eÁUÀPÉÌ. £ÁªÀÅ CzÀÄ £ÀªÀÄä eÁUÀ JAzÀÄ ºÉÃ¼ÀÄvÉÛÃªÉ. ªÁ¢AiÀÄgÀÄ CªÀgÀ eÁUÀ JAzÀÄ ºÉÃ¼ÀÄwÛzÁÝgÉ. £ÁªÀÅ £ÀªÀÄäzÀÄ JAzÀÄ ºÉÃ¼ÀÄªÀ eÁUÀzÀ ¸À.£ÀA. £À£ÀUÉ ºÉÃ¼À¯ÁUÀÄªÀÅ¢®è. ”

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Though the defendant relies heavily on the agreement

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of sale dated 04^th December, 2000 in paragraph 3 of the written statement as well reiterates the same in the cross-examination

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referred to above, however, strangely the defendants have not produced agreement of sale dated 04^th December, 2000 and in that view of the matter, the finding recorded by both the trial court below that defendant failed to prove execution of agreement of sale dated 04^th December, 2000 is just and proper and do not call for any interference in this appeal.

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The trial Court having considered the entire documents on record, found that the Jamabandi of the year 1958-59 in relation to Survey No.155 of Ooruguppe and Exhibit P11certificate issued by the Secretary, Hebbale Grama Panchyat stating that land measuring nineteen cents in Survey No.42/1; land measuring one cent in Survey No.42/2 are one and the same. Certificate-Exhibit P11 is prepared on the basis of the original jamabandi extract in the Grama Panchayat and in this regard, the defendant has not elicited anything contra to the evidence of the PW1 and therefore, I am of the considered view that the finding recorded by the trial Court is just and proper.

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Defendants 1 and 2 in their written statement filed before the trial Court, at paragraph 3 have stated as hereunder:

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“The property alleged to have purchased by the plaintiff as claimed in para-2 and 3 of the plaint is

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nothing to do with the property bearing Survey.No.42/1 of 0.19 acre and Survey.No.42/2 of 0.01 acre of Hebbale Village….

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….. The property bearing Survey No.42/1 of area 0.19 acres in Survey.No.42/2 of 0.01 acre is in possession of defendant-2 after the death of his father late Reddy Puttappa about 35 years ago…..

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…..The defendant No.2 who is the absolute owner with possession and enjoyment of the land of area 0.19 acre in Survey.No.42/1 block No.2 of Hebbale village under agreement of Sale dated 04.12.2000 sold 5.50 cents to defendant-1. The defendant -1 took possession of the land….

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…..To the best of the knowledge of the defendants Reddy Puttappa had not sold this bit of land either to late Thimmappa or to others in respect of this land.”

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From the above statement, it is clear that the defendant No.2 who is the absolute owner with possession and enjoyment of the land of area 0.19 acre in Survey No.42/1, Block No.2 of Hebbale village, under agreement of sale dated 04^th December, 2000, sold 5.50 cents to defendant No.1 and the defendant No.1 took possession of the land.

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I have also examined the finding recorded by the First Appellate Court, whereunder the First Appellate Court, after re-

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appreciation of the evidence of DW1 and DW2, and, on reappreciation of evidence of DW2 who deposed that the land which was sold in 1953 by his father refers to Survey No.155 and also further stated it is now re-numbered as Survey 42/2 and in that view of the matter, had come to a conclusion that there is no infirmity in the judgment and decree passed by the trial Court. In this regard, it is necessary to refer to the crossexamination of DW2. The same reads as under:

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“£Á£ÀÄ ºÉÃ¼ÀÄªÀ E£ÉÆß§â gÉrØ ¥ÀÄlÖ¥Àà£À vÀAzÉ AiÀiÁgÀÄ, CªÀgÀ ªÀÄPÀÌ¼ÀÄ AiÀiÁgÀÄ J°è ªÁ¸ÀªÁVzÁÝgÉ JAzÀÄ £Á£ÀÄ F PÉÃ¸ÀÄ ºÁQzÀ £ÀAvÀgÀ w½zÀÄPÉÆAr®è. £À£Àß vÀAzÉ gÉrØ ¥ÀÄlÖ¥Àà wªÀÄä¥Àà¤UÉ ¸ÉÆvÀÛ£ÀÄß §gÉzÀÄPÉÆnÖzÁÝgÉ JA§ «µÀAiÀÄªÀ£ÀÄß C®èUÀ¼ÉAiÀÄÄªÀ GzÉÝÃ±À¢AzÀ gÉrØ ¥ÀÄlÖ¥Àà J£ÀÄßªÀªÀgÀÄ ¨ÉÃgÉ EgÀ§ºÀÄzÀÄ JAzÀÄ £Á£ÀÄ ºÉÃ¼ÀÄwÛzÉÝÃ£É JAzÀgÉ ¸ÀjAiÀÄ®è. ºÉ¨Áâ¯ É UÁæªÀÄzÀ ¸À.£ÀA.72£ÀÄß ºÉ¨Áâ¯É £ÉÆÃn¥sÉÊqïJjAiÀÄ ¸À.£ÀA.155 JAzÀÄ PÀgÉAiÀÄÄvÁÛgÉ, CzÀÄ MAzÉÃ eÁUÀPÉÌ ¸ÀA§AzsÀ¥ÀlÖzÀÄÝ JAzÀgÉ ¸ÀjAiÀÄ®è. F JgÀqÀÄ ¸ÀªÉð£ÀA§gÀÄUÀ¼ÀÄ ¨ÉÃgÉ ¨ÉÃgÉ JAzÀÄ ºÉÃ¼À®Ä £À£Àß §½ AiÀiÁªÀÅzÉÃ zÁR¯ÉUÀ¼ÀÄ E®è. £Á£ÀÄ D eÁUÀªÀ£ÀÄß ¸ÀªÉð ªÀiÁr¹®è. F JgÀqÀÄ ¸ÀªÉð £ÀA§gÀÄUÀ¼ÀÄ MAzÉÃ D¹ÛUÉ ¸ÀA§AzsÀ¥ÀnÖzÀÄÝ C®è, ¨ÉÃgÉ ¨ÉÃgÉ JAzÀÄ ¥ÀAZÁ¬Äw zÁR¯ÉUÀ¼À DzsÁgÀzÀ°è ºÉÃ¼ÀÄwÛzÉÝÃ£É. ºÉ¨Áâ¯ï £ÉÆÃn¥sÉÊqï JjAiÀiÁzÀ ¸À.£ÀA.155 FUÀ ºÉ¨Áâ¯ï UÁæªÀÄ ¥ÀAZÁ¬ÄwAiÀÄ D D¹ÛAiÀÄÄ ¸ÀzÀj UÁæªÀÄ ¥ÀAZÁ¬ÄwAiÀÄ ¨ÁèPï £ÀA.2 gÀ°è EzÉ JAzÀgÉ £À£ÀUÉ UÉÆwÛ®è. ”

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Taking into consideration the finding recorded by the trial Court and on re-appreciation of the evidence, the First Appellate Court, rightly confirmed the judgment and decree passed by the trial Court, which do no call for any interference in this appeal. Both the courts below have analyzed the documents and arrived at a conclusion that the Survey No.72, 155, 42/1 and 42/2 originally belong to father of the DW2 and as such, I do not find any illegality or perversity in the finding recorded by the trial Court and accordingly, appeal is dismissed as devoid of merits. The appellant having not made out any case for formulation of any substantial question of law in this appeal as provided under Section 100 of Code of Civil Procedure, the appeal stands dismissed at the stage of admission itself.

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Sd/JUDGE

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lnn/SB

H T Nagesh v. N Raju

Case brief

What is this about?

What did the court decide?

H T Nagesh v. N Raju

Case brief

What is this about?

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