Dismissed

Smt Aswathamma v. Sri G S Nagabushana Rao

Karnataka HC3 Sept 2021RSA/122/2021

Case brief

AI extract

What is this about?

In a second appeal under Section 100 of CPC challenging a civil suit decree concerning property declaration and recovery of possession, the High Court held that no perversity existed in the Lower Courts' appreciation of evidence (including cross-examination admissions) and dismissed the appeal.

What did the court decide?

The appeal filed under Section 100 of CPC is dismissed, upholding the lower courts' judgment and decree.

Smt Aswathamma Vs Sri G S Nagabushana Rao — Property and Title | Karnataka HC (2021)

¶1

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3^RD DAY OF SEPTEMBER, 2021

¶3

BEFORE

¶4

THE HON'BLE MR. JUSTICE H.P. SANDESH

¶5

R.S.A.NO.122/2021 (DEC)

¶6

BETWEEN:

¶7

SMT. ASWATHAMMA

¶8

W/O LATE V.S.NAGARAJ @ NAGARAJAIAH AGED ABOUT 66 YEARS

¶9

SRI SHIVAPRASAD S/O LATE V.S.NAGARAJ @ NAGARAJAIAH AGED ABOUT 41 YEARS

¶10

BOTH ARE R/AT VARLAKONDA VILLAGE SOMENAHALLI HOBLI GUDIBANDE TALUK – 561 209 C.B.PURA DISTRICT

¶11

… APPELLANTS

¶12

[BY SRI A.LOURDU MARIYAPPA, ADVOCATE]

¶13

AND:

¶14

SRI G.S.NAGABUSHANA RAO S/O LATE SUBBARAO AGED ABOUT 76 YEARS R/O KARANJIKATTE, 7^TH CROSS KADRIPURA ROAD KOLAR – 563 101

¶15

SRI ASHWATHAPPA

¶16

S/O NARAYANAPPA @ KONDAPPA AGED ABOUT 74 YEARS RETIRED TEACHER

¶17

¶18

R/AT VARLAKONDA VILLAGE SOMENAHALLI HOBLI GUDIBANDE TALUK – 561 209 C.B.PURA DISRICT

¶19

… RESPONDENTS

¶20

[BY SRI GIRISHA V., ADVOCATE FOR R1; R2 IS SERVED]

¶21

THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 16.01.2021 PASSED IN R.A.NO.107/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE AT GUDIBANDE AND ETC.

¶22

THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

¶23

J U D G M E N T

¶24

This appeal is listed for admission. Heard the learned

¶25

counsel appearing for the parties.

¶26

This appeal is filed challenging the judgment and

¶27

decree dated 16^th January 2021 passed in R.A.No.107/2016 on the file of the Senior Civil Judge at Gudibande.

¶28

The factual matrix of the case is that the

¶29

plaintiff/respondent No.1 had filed a civil suit in O.S.No.85/2009

¶30

before the Trial Court praying to grant a relief of declaration that he is the absolute owner of the suit ‘A’ schedule property and

¶31

¶32

also for the recovery of possession of ‘B’ schedule property from

¶33

the first defendant and for the recovery of possession of ‘C’ schedule property from the second and third defendants and also for the relief of permanent injunction restraining the defendants, their agents, legal heirs, coolies, executors or any other persons from interfering with the suit schedule property.

¶34

The very claim of the plaintiff/respondent No.1 before the Trial Court is that he is the absolute owner of the suit schedule property as the same is his ancestral property and he has mutated katha in his name by way of inheritance and paying the tax before the concerned Authority. It is also his claim that the defendants have no right over the suit schedule property. In the month of March 2008, the first defendant approached the plaintiff orally for grant of permission for the purpose of tethering cattle and for laying haystack towards the western side of the property and obtained the possession of ‘B’ schedule property and agreed to deliver the possession of the same after a year. Similarly the second and third defendants have also obtained the possession and ‘C’ schedule property for the purpose of dumping manure pit towards eastern side of the

¶35

¶36

property to the extent of 10 x 15 feet and agreed to deliver the possession of the same within one year. Now, the first defendant is in possession of ‘B’ schedule property and the second and third defendants are in possession of the ‘C’ schedule property. As the defendants have failed to deliver the possession of the suit schedule ‘B’ and ‘C’ properties, the plaintiff/respondent No.1 lodged a complaint against them and also got issued the legal notice calling upon them to deliver the ‘B’ and ‘C’ schedule properties and as they failed to do so, the civil suit is filed before the Trial Court.

¶37

In pursuance of the suit summons, the appellants herein have filed their written statement contending that the father of the third defendant and the husband of the second defendant viz., V.S.Nagaraj acquired the property through a partition deed dated 27^th November 1959 which took place between G.S.Adisheshaiah and V.S.Ananthamurthy. Under the said partition deed, V.S.Nagaraj got the land measuring east to west 24 feet and north to south 90 feet. Towards the southern side of the property there was a Government land, which is belongs to the plaintiff/respondent No1. The said property was

¶38

¶39

lying as a waste land, since the plaintiff is not a permanent resident of Varlakonda Village, he is residing at Kolar town. Hence, the concerned Panchayath has acquired the plaintiff’s property and allotted the sites to Ramakrishna, Ramesh and Narasinaha Murthy. The remaining land is belongs to the plaintiff only. The plaintiff without claiming his land which is situated towards the southern side of the defendants’ property is falsely claiming defendants property by giving false boundaries to the suit schedule property. These defendants possessed the property from their ancestors. The claim of the plaintiff is illegal and against the law and he is stranger to the suit schedule property. The suit schedule property belongs to the defendants only, but the plaintiff’s property situated towards southern side of the suit schedule property. Without claiming the same, he falsely claims the defendants’ property.

¶40

The Trial Court after considering the pleadings of the parties, framed the issues whether the plaintiff is the absolute owner of the ‘A’ schedule property and whether the defendants are in permissive possession of the ‘B’ and ‘C’ schedule properties.

¶41

¶42

The contention of the defendants that the boundaries stated by the plaintiff in the plaint are false and untenable was not accepted and other issues were answered in the affirmative and granted the relief of declaration and possession directing the first defendant to deliver the ‘B’ schedule property in favour of the plaintiff as well as the second and third defendants to deliver the ‘C’ schedule property in favour of the plaintiff.

¶43

Being aggrieved by the judgment and decree passed by the Trial Court, the appellants herein have filed the appeal bearing R.A.No.107/2016. The first Appellate Court also having perused the grounds and also on re-appreciation of the material available on record, framed two points for consideration whether the Trial Court was justified in decreeing the suit of the plaintiff holding that he is the absolute owner of the ‘A’ schedule property and whether the plaintiff is entitled to recover the possession of ‘C’ schedule property from the second and third defendants i.e., from the appellants herein. The first Appellate Court, on re-appreciation of both the oral and documentary evidence, comes to the conclusion that the Trial Court had rightly comes to the conclusion that ‘A’ schedule property

¶44

¶45

belongs to the plaintiff and also on re-appreciation with regard to the ‘C’ schedule property is concerned, while answering point No.2, made a detailed discussion in paragraphs 17, 18 and 19 and record its finding that the Trial Court has not committed any error in passing the judgment and decree. Hence, the present second appeal is filed by the appellants/defendants No.2 and 3.

¶46

The main contention of the appellants before this Court is that both the Courts have not appreciated both oral and documentary evidence in respect of limitation as well as the boundary. The learned counsel appearing for the appellants vehemently contended that the description of the partition deed of the year 1927 is differs from the suit schedule property. It is

¶47

also further contended that the respective Courts have not considered the admissions elicited from the mouth of PW1 and PW2 and erroneously came to the conclusion that they are in permissible possession and ordered to hand over the possession of the ‘C’ schedule property. Based on the grounds which have been urged in the appeal, the draft substantial question of law also framed by the appellants stating that in Ex.P1-Partition Deed dated 13^th November 1927, description is different from

¶48

¶49

the suit schedule property and the respective Courts have given their perverse finding as against the material available on record and also the suit is barred by limitation.

¶50

Per contra, the learned counsel appearing for the plaintiff by producing a copy of judgment passed in R.S.A.No.2235/2018 vehemently contended that the judgment and decree of the Trial Court in O.S.No.85/2009 and also the first Appellate Court passed in R.A.No.125/2016 is confirmed the same in R.S.A.No.2235/2018 wherein the first defendant had challenged the same. This Court in the second appeal also taken note of reasoning given by the Trial Court in respect of the ‘B’ schedule property is concerned and dismissed the same on merits. The counsel brought to the notice of this Court that this Court while considering the other second appeal taken note of both the defendants who have contested the matter and their specific defence is that the plaintiff is not the owner of the suit schedule property and also his claim over the same is illegal. But, in order to substantiate their contention, they have not placed any material before the Court with regard to the ‘A’ schedule property.

¶51

¶52

The second and third defendants are claiming that ‘C’ schedule property is belongs to them. When this Court already considered the decree in question in O.S.No.85/2009 and other appellate appeal order and comes to the conclusion that there is no merit in the case and there are no grounds to entertain this second appeal in absence of any perversity and hence, it requires to be dismissed. Having heard the contention of the learned counsel appearing for the appellant and respondents in R.S.A. No.2235/2018, this Court confirmed the judgment and decree of both the Trial court as well as the first Appellate Court in respect of the ‘B’ schedule property.

¶53

Now, the question before this Court is in respect of the ‘C’ schedule property is concerned, it has to be noted that the defendants before the Trial Court have examined themselves as DW1 and DW4. In order to substantiate their contention that ‘B’ and ‘C’ schedule properties belongs to them, except the documents at Ex.D2, D3 and D8 they have not produced any documents but they are claiming their right over the suit schedule property on the basis of Ex.D8 - partition deed. The first defendant also relied upon the documents at Ex.D1 to D3.

¶54

¶55

Those documents are not accepted by the Trial Court, first Appellate Court and also this Court in R.S.A. No.2235/2018. It is pertinent to note that the Trial Court after taking note of the material placed before the Court and particularly, Ex.P1 - partition deed of the year 1927 with regard to the title is concerned, in paragraph 18 has made the discussion in detail observing that subsequently the property is mutated in favour of the plaintiff as per H.L.No.202 to the extent of 75 x 75 feet. The claim of the plaintiff in respect of ‘C’ schedule property is concerned is only 10 x 15 feet and also taken note of the boundaries mentioned in respect of ‘C’ schedule property and the answer elicited from the mouth of PW1, DW1 and DW4 that they have also not disputed the fact that the plaintiff’s property vests with the eastern side of the property which they are claiming.

¶56

The Trial Court in paragraph 18 taken note of the answer elicited from the mouth of DW1 and DW4 that they categorically admitted that towards the northern side of the suit schedule property after the road, the first defendant is owning the property and residing in the said house. Similarly, on perusal of H.L.No.202 and the evidence of DW4 who is the

¶57

¶58

appellant herein deposed that towards the western side of his property, the suit schedule property is situated. When this admission was taken note by the Trial Court, the Trial Court comes to the conclusion that the suit schedule property belongs to the plaintiff and the defendants are in possession of ‘B’ and ‘C’ schedule properties and also taken note of the fact that the second and third defendants though they claims their right over the suit schedule property, they have not produced any documents in this regard and it is also observed that they are in permissive possession.

¶59

The first Appellate Court also taken note with regard to the limitation. In paragraph 19, the first Appellate Court discussed the same in detail invoking Article 113 of the Limitation Act and further observed that it is not the case of the second and third defendants that they claimed their title by adverse possession.

¶60

When the plaintiff placed the documents with regard to his ownership in respect of the suit schedule property which came to him under Ex.P1, H.L.No.202 and also other documents including tax paid receipts, house tax assessment and

¶61

¶62

photographs at Ex.P13 to P17, the Trial Court and the first Appellate Court considered the same. It is further observed that the first and third defendants are the Government employees and they claims that the properties are allotted to them in terms of Ex.D2 and D3 and the same is not explained by them how the Government servants got the benefit of free allotment in their favour from the Government.

¶63

With regard to the contention in respect of the description of the suit schedule property is concerned, when DW1 and DW4 have categorically admitted that their property is situated on the northern side and western side of the suit schedule property. The very contention of DW1 and DW4 that they are having right over the ‘B’ and ‘C’ schedule properties but the same has not been proved by placing any documentary evidence. Hence, the Trial Court has rightly answered the Issue No.5 in the Negative. The defendants in the written statement contended that the plaintiff’s property to some extent acquired and allotted as sites to some other persons and instead of claiming the said acquired property, the plaintiff is claiming the

¶64

¶65

defendants property. The said defence has not been proved by placing any document.

¶66

The learned counsel appearing for the appellant

¶67

vehemently contended that the Courts cannot rely upon the weakness of the defendants. It is the plaintiff to prove his case on his own and there is no dispute with regard to the settled principle that the plaintiff has to prove his case in respect of ‘A’ schedule property. In this regard, the plaintiff has produced the documents in respect of his ownership. With regard to the possession of ‘B’ and ‘C’ schedule properties is concerned, the defendants have not made out any ground to substantiate their contention that the same belongs to them. This Court also

¶68

rejected the claim of the first defendant in R.S.A.No.2235/2018. Under the circumstances, when there is no any perversity in appreciation of the evidence available on record, I do not find any grounds to invoke Section 100 of CPC to frame substantial question of law. In the absence of substantial question of law with regard to material available on record and when the concurrent finding is given based on the material on record, I am

¶69

¶70

of the opinion that there is no merit in the appeal to admit the second appeal and frame substantial question of law.

¶71

In view of the discussions made above, I pass the

¶72

following:

¶73

ORDER

¶74

The appeal is dismissed.

¶75

Sd/JUDGE

¶76

Smt Aswathamma v. Sri G S Nagabushana Rao

Case brief

What is this about?

What did the court decide?

Smt Aswathamma v. Sri G S Nagabushana Rao

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Mohammed Ashraf Vs Mr. C. N. Rudramurthy

Smt Lakshmamma Vs Lakshmaiah

S Mahadevu Vs Nanjaiah

M/S Strides Arcolab Ltd. Vs Sterling Kitchens India

Srinivasanayaka Vs Honnamma @ Usha

Sri. M Rajanna Vs Smt. Puttamma