Dismissed

Yoganandaswamy S/O Puttaswamy Gowda v. Bhagyamma Widow of Nagaraje Gowda

Karnataka HC6 Mar 2021RSA/1914/2006

Case brief

AI extract

What is this about?

In a Regular Second Appeal, the High Court of Karnataka dismissed the appeal filed by defendants. The court held that the First Appellate Court was justified in decreeing the plaintiff's suit for a perpetual injunction, finding the defendants failed to prove delivery of possession under their alleged agreement of sale.

What did the court decide?

The appeal is dismissed; the First Appellate Court's judgment decreeing a perpetual injunction is affirmed.

Yoganandaswamy S/O Puttaswamy Gowda Vs Bhagyamma Widow… — Property and Title | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 6^TH DAY OF MARCH, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE NATARAJ RANGASWAMY

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REGULAR SECOND APPEAL NO.1914 OF 2006

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BETWEEN :

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YOGANANDASWAMY AGED 49 YEARS S/O PUTTASWAMY GOWDA

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BHAGYALAKSHMAMMA AGED 43 YEARS W/O YOGANANDASWAMY

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BOTH ARE RESIDENTS OF KANCHUGARAKOPPALU, CHUNCHANAKATTE HOBLI, K.R. NAGARA TALUK, MYSORE DISTRICT – 570 001.

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…APPELLANTS

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(BY SRI. PRAKASH M.PATIL, ADVOCATE)

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AND :

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BHAGYAMMA AGED 51 YEARS, WIDOW OF NAGARAJE GOWDA DOOR NO.9(MIG), VINAYAKA EXTENSION, CHEERANAHALLI ROAD, KRISHNARAJANAGARA TOWN, MYSORE DISTRICT – 570 001.

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…RESPONDENT

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(BY SRI. GURARAJ KULKARNI, ADVOCATE)

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THIS R.S.A. FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT & DECREE DATED 24.03.2006 PASSED IN R.A.NO.19/96 ON THE FILE OF THE CIVIL JUDGE (SR.DN) HUNSUR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 24.01.1996 PASSED IN O.S.NO.72/95 ON THE FILE OF THE MUNSIFF AND JMFC, KRISHNARAJANAGARA.

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

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J U D G M E N T

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This appeal is filed by the defendants challenging the

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Judgment and Decree of the First Appellate Court in R.A.No.19/1996, by which, the First Appellate Court reversed

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the Judgment and Decree passed by the Trial Court in O.S.No.72/1995. The First Appellate Court held that the plaintiff is entitled to a decree of perpetual injunction in respect of the suit schedule property.

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The plaintiff claimed that her husband

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Sri. Nagaraje Gowda was granted 9 acres 36 guntas of dry land, which is suit schedule property, in terms of the order of grant dated 24.11.1973. The revenue records of suit schedule property was transferred to the name of Nagaraje Gowda, who died on 19.09.1993. It is stated that after the death of Nagaraje Gowda, the plaintiff was in lawful possession and

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enjoyment of suit schedule property and was cultivating the same. It is stated that on 20.03.1995 the defendants trespassed into the suit schedule property and obstructed the lawful possession and enjoyment of the property by the plaintiff. When she tried to thwart their acts, the defendants threatened the plaintiff with grave consequences, which compelled her to file a suit for bare injunction.

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The suit was contested by the defendants, who admitted the grant of suit schedule property to Nagaraje Gowda by the Government. They claimed that the revenue records stood in the name of Nagaraje Gowda till the year 1997 and the defendants were in possession thereafter and the same was entered in the revenue records. It is further contended that Nagaraje Gowda had handed over the possession of the suit property in terms of the agreement of sale dated 16.07.1977, as he was not able to cultivate the land, since it was far away from his place. He had authorized defendant No.1 to clear loan of Nagaraje Gowda, which he had raised from PLD Bank. It is claimed that defendant No.2 was placed in possession of the suit property on the date of agreement itself and the

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defendants cleared the loan and were enjoying the property from the date of the agreement till the date of filing of the suit. They also contended that the name of the defendant No.1 was entered in column No.12 of the RTC, as he was cultivating the land in question and was in physical possession. Therefore, they contended that the suit for perpetual injunction was not maintainable.

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4. Based on these rival contentions, the Trial Court

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framed the following issues:-

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i) Whether the plaintiff proves, that she is in lawful possession of the suit property on the date of suit?

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ii) Whether plaintiff further proves that the interference by the defendant of the plaint schedule properties?

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iii) Whether the defendants prove that he is in possession of the suit schedule property as per agreement dated 16.7.1977?

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iv) What reliefs the parties are entitled to?

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v) What Order or Decree?

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The plaintiff was examined as PW.1 and she also examined two other witnesses as PW.2 and PW.3 and they marked documents as Exs.P1 to P10, while defendant No.1 was examined as DW.1 and three other witnesses were examined as DW.2 to DW.4 and they marked documents as Exs.D1 to D21.

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Based on the oral and documentary evidence, more particularly the evidence of DW.4, the Trial Court held that Nagaraje Gowda had executed the agreement of sale at Ex.D1. The Trial Court relied on the evidence of DWs.2 and 3 and held that the said Nagaraje Gowda had handed over the possession of the suit property and that the defendants were in possession of the suit property as on the date of the suit. The Trial Court therefore, held that the suit for bare injunction was not maintainable and thus dismissed the suit in terms of its Judgment and Decree dated 24.01.1996.

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Being aggrieved by the Judgment and Decree of the Trial Court, the plaintiff filed R.A. No.19/1996. The First Appellate Court summoned the records of the Trial Court, heard

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the counsel for the parties, framed points for consideration. The First Appellate Court took exception against the Trial Court marking Ex.D1, subject to objection regarding inadmissibility of Ex.D1 as sufficient stamp duty was not paid. It held that there was no basis to mention the name of defendant No.1 in the revenue records and that it certainly could not be on the basis of Ex.D1. It further held that DW.4 who was an attesting witness deposed that Ex.D1 was executed in favour of both the defendants, while in fact that it was allegedly executed in favour of defendant No.1 alone. Hence, it discarded the evidence of DW.4 as inconsequential. It noticed that DW.4 deposed more than what DW.1 claimed. After perusing the pleadings of the parties and oral and documentary evidence, the First Appellate Court also noticed from Ex.D1 that it did not contain any recital regarding delivery of possession of suit property to the defendants. The First Appellate Court held that though Trial Court had noticed this fundamental fact, yet, it leaned in favour of the defendants by holding that the defendants were placed in possession of the suit property. The argument of the defendants that the plaintiff was an absentee

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landlord and therefore it was probable that the defendants were in possession of the suit property was rejected by the First Appellate Court. The First Appellate Court relied upon the evidence of PW.2, who was a resident of the adjoining village and whose land was situate near the suit property, who denied the suggestion that the defendants were in possession of the suit property. The First Appellate Court noticed the evidence of DW.1, who claimed that he was placed in possession of the suit schedule property in terms of Ex.D.1 and not by any other mode or means. Therefore, the First Appellate Court held that, when Ex.D.1 was not admissible, any amount of evidence in support of Ex.D.1 was inconsequential. It also noticed that the defendants had not confronted the signatures found on Ex.D.1 to PW.1. Having regard to the above facts, the First Appellate Court held that the defendants did not establish that the plaintiff had placed the defendants in possession of the suit schedule property in terms of Ex.D1. The ancillary claim of the defendants that, they were in possession of the suit property from the date of the agreement, as the plaintiff was a widow

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and an absentee landlady, was not accepted by the First Appellate Court.

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Having regard to the above, the First Appellate Court allowed the appeal and reversed the Judgment and Decree of the Trial Court and decreed the suit.

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Being aggrieved by the aforesaid Judgment and Decree of the First Appellate Court, the defendants have filed the present appeal.

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This appeal was admitted on 10.06.2009 to consider the following substantial questions of law:-

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1) Whether the Lower Appellate Court was justified in reversing the Judgment and Decree of the Trial Court by placing reliance on the documents at Ex.P-9 and Ex.P-10 to come to the conclusion that the plaintiff is in possession of the suit schedule property in the light of the defence put-forth that the possession that the possession of the property was with the defendants as handed over under the document at Ex.D1?

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2) Whether the Lower Appellate Court has committed perversity in the manner of re-appreciation of the

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evidence when the trial Court had come to a different conclusion based on the same set of evidence before it?

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11. Learned counsel for the defendants/appellants

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contended that, DW.2 and DW.3, who are the owners of the neighboring land on the southern and western side of the suit property, deposed that the defendants were in possession of the suit property. He contended that there was no contrary evidence extracted from DW.2 and DW.3 to discredit their evidence. He also brought to the notice of the Court that the plaintiff was not a resident of the village where the suit property was situate, but resided far away from that place. Therefore, he contended that it was quite obvious that the defendants were in possession of the suit property and the same is evident from the revenue records. He also claimed that the fact that defendant No.1 had cleared the loan raised by the said Nagaraje Gowda from PLD Bank, made the case of the defendants more than probable. Learned counsel also drew the attention of the Court to the receipts issued by the PLD Bank marked as Exs.D4 to D20 and argued that, if the said Nagaraje

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Gowda had not executed any agreement of sale, then the defendant No.1 would not have cleared the loan of PLD Bank. He also brought to the notice of this Court, the entries in column No.12 of the revenue records at Ex.D2 and Ex.D3, which indicate that defendant No.1 was in possession of the suit schedule property. Further he contended that this state of affair and set of things continued from the year 1977, when Ex.D1 was executed and no effort was made by the plaintiff to recover possession of the suit schedule property. Therefore, he contended that, these made it more than probable that the defendants were in possession of the suit schedule property and that the plaintiff could not file a suit for bare injunction.

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Learned counsel for the defendants argued that, the plaintiff ought to have filed a suit for declaration and possession of the suit schedule property. He also brought to my notice the evidence of DW.4, who was a witness to Ex.D1 and who categorically deposed in his evidence that Nagaraje Gowda had executed Ex.D1 and he was privy to the transaction. Learned counsel therefore contended that there is telling evidence on record, which discloses that the said Nagaraje Gowda had

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executed an agreement of sale followed by delivery of possession of the suit property to the defendants. Therefore, he contended that the First Appellate Court ought not to have lightly considered the effect of Ex.D1. He also contended that the First Appellate Court did not consider the evidence of DW.2 and DW.3 in the proper perspective, as regards the possession of the suit schedule property is concerned. He also contended that the evidence of DW.4 was lightly considered by the First Appellate Court without the required seriousness.

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Since there is no representation for the respondent, this Court did not have the benefit of the argument of the learned counsel for respondent Sri. Gururaj Kulkarni.

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I have considered the submission made by the learned counsel for the appellants and also perused the records of the Trial Court and the First Appellate Court, as well as their judgments and decrees. I have also perused the grounds urged by the appellants in this appeal memorandum.

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It is not in dispute that the suit property was granted to Nagaraje Gowda, the husband of the plaintiff, in

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terms of Ex.P3. It is also not in dispute that the name of Nagaraje Gowda was entered in the revenue records and that later, he executed a Deed of Hypothecation of the suit property in favour of PLD Bank for the purpose of raising loan to raise coconut plantation and to sink a bore-well in the suit property. The only interdicting circumstance claimed by the defendant No.1 is that Nagaraje Gowda had executed an agreement of sale dated 16.07.1977 (Ex.D1) in favour of defendant No.1, which contained recitals that enabled the defendants to pay off loan raised by Nagaraje Gowda at PLD Bank. However, there is no recital contained in Ex.D.1 regarding handing over of the possession of the suit property by Nagaraje Gowda in favour of defendant No.2. In view of the categorical evidence of DW.1 that the possession of the suit property was delivered to defendant No.2 under Ex.D.1, it is obvious that Ex.D1 alone has to be looked into to ascertain whether the possession of the suit property was indeed delivered or not. No amount of oral evidence can supplement this requirement. DW.3 and DW.4 are two witnesses, who speak about possession of the land by Defendant No.2. However, it is extracted in their cross-

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examination that, DW.2 does not own any property on the Western side of Sy.No.10/1. Likewise, DW.3 stated that Nagaraje Gowda was cultivating the land in question for 1 or 2 years and that he was related to the defendants.

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Since the defendants claim that they were placed in possession of the suit property in terms of agreement of sale, it is incumbent upon the defendants to not only prove lawful execution of Ex.D.1, but also the fact that they were placed in possession of the suit property under the agreement. Since Ex.D.1 is silent on the aspect of handing over the possession of the suit property, no guess work can be allowed. The mere fact that the plaintiff was an absentee land lady, which cannot embolden the defendants to claim that, they were in possession of the suit property. The evidence of DW.3 and DW.4 cannot aid the defendants in any manner whatsoever. The defendants have therefore failed to prove that Ex.D1 was executed by Nagaraje GOwda and that the defendants were placed in possession of the suit property. It is now trite that in respect of agricultural land, possession follows title and since the defendants have not disputed the title of Nagaraje Gowda, it is

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obvious that possession of the suit property has to go along with the title of the plaintiff.

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In that view of the matter, the First Appellate Court was justified in decreeing the suit and declaring that the plaintiff is entitled to a decree of perpetual injunction in respect of the suit schedule property. Hence, the substantial questions of law framed by this Court are answered in the affirmative and it is declared that the First Appellate Court was justified in reversing the judgment and decree of the Trial Court. There is no perversity in the appreciation of evidence by the First Appellate Court. Hence, this appeal lacks merit and the same is

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dismissed .

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Sd/JUDGE

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RKA/KGR*

Yoganandaswamy S/O Puttaswamy Gowda v. Bhagyamma Widow of Nagaraje Gowda

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Yoganandaswamy S/O Puttaswamy Gowda v. Bhagyamma Widow of Nagaraje Gowda

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