Dismissed

Muniyappa S/O Late Doddamunivenkatappa v. Sri Basavalinga Raju S/O K L Anjaneegowda

Karnataka HC12 Jan 2021RSA/400/2007

Case brief

AI extract

What is this about?

This Special Leave Petitioner RSA (appeal) challenged a lower court decree declaring the respondent-plaintiff the absolute owner of suit properties and ordering recovery of possession. The High Court upheld the trial and first appellate courts' findings that the sale deed barred the vendor from contesting title and confirmed the plaintiff's title.

What did the court decide?

Appeal dismissed, judgment and decree of lower courts confirmed.

Muniyappa S/O Late Doddamunivenkatappa Vs Sri… — 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 12^TH DAY OF JANUARY, 2021

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BEFORE

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

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R.S.A.No.400/2007

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BETWEEN:

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1 . MUNIYAPPA S/O LATE DODDAMUNIVENKATAPPA AGED ABOUT 76 YEARS, SINCE DEAD BY HIS LRs.

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2 . SRI CHINNAPPA S/O LATE NADUVALI MUNIVENKATAPPA AGED ABOUT 63 YEARS, SINCE DEAD BY HIS LRs.

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2a). SRINIVASAPPA AGED ABOUT 46 YEARS SON OF LATE M CHINNAPPA RESIDING AT KARENAHALLI VILLAGE, VEMAGAL HOBLI KYALANURU POST KOLAR TALUK AND DISTRICT.

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2b). SMT.NARARATHNAMMA AGED ABOUT 43 YEARS D/O LATE M CHINNAPPA W/O C.K.RAMACHANDRA No.19, 14^TH CROSS BHATTARAHALLI, BANASHANKARI 6^TH PHASE, BENGALURU – 560 049.

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2c). SRI DEVARAJ AGED ABOUT 41 YEARS S/O LATE M CHINNAPPA

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RESIDING AT KARENAHALLI VILLAGE, VEMAGAL HOBLI KYALANURU POST KOLAR TALUK AND DISTRICT. 2d). SMT.K C RUKMINI AGED ABOUT 40 YEARS D/O LATE M CHINNAPPA W/O ADINARAYANA MURTHY RESIDING AT No.23 8^TH PHASE, J.P.NAGAR BENGALURU. 2e). SMT.K C KALAVATHI AGED ABOUT 35 YEARS D/O LATE M CHINNAPPA RESIDING AT BYRAKURU VILLAGE, MULABAGALU TALUK, BYRAKURU POST KOLAR DISTRICT. 3. SRI SRIRAMAPPA S/O LATE NADUVALI MUNIVENKATAPPA AGED ABOUT 61 YEARS, 4 . NARAYANAPPA S/O LATE NADUVALI MUNIVENKATAPPA AGED ABOUT 54 YEARS, ALL ARE RESIDING AT KARENAHALLI KOLAR TALUK, KOLAR DISTRICT – 571 203. ..APPELLANTS (BY SRI C.VENKATESH, ADVOCATE FOR SRI S CHENNARAYA REDDY, ADVOCATE)

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AND:

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SRI BASAVALINGA RAJU S/O K L ANJANEEGOWDA AGED ABOUT 32 YEARS, RESIDING AT KARENAHALLI ,

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KOLAR TALUK

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KOLAR DISTRICT – 571 203. ..RESPONDENT

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(BY SRI D V PURUSHOTHAM, ADVOCATE)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 21.11.2006 PASSED IN R.A.No.212/2005 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE(SR.DN) AND CJM, KOLAR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 12.1.2005 PASSED IN O.S.No.242/2001 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE(JR.DN), KOLAR.

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THIS RSA COMING ON FOR DICTATING JUDGMENT THIS DAY , THE COURT THROUGH VIDEO CONFERENCE AT BENGALURU DELIVERED THE FOLLOWING:

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JUDGMENT

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Today learned counsel for respondent Sri.D.V.Purushotham is present and submits that he

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could not be present on the previous date of hearing

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and prays for submitting his part of submission on

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behalf of respondent.

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Heard learned counsel for respondent.

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Appeal is directed against the Judgment and decree dated 21.11.2006 passed in R.A.212/2005 wherein appeal came to be dismissed confirming the Judgment and decree dated 12.01.2005 passed in O.S.No.242/2001 wherein suit filed by plaintiff came

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to be decreed and plaintiff is declared to be absolute owner of the suit schedule A’ and B’ properties. The defendant was also directed to put the plaintiff in possession of `A’ schedule property.

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Insofar as schedules are concerned they are as under:

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`A’ schedule

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Property bearing Sy.No.3/2 of Karenahalli, Vemagal Hobli, Kolar Taluk and District, measuring 4½ guntas marked as ABCD in rough sketch and bounded on the

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East by : Sy.No.3/2 of Chinnappa

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West by : Kanthappa and Nanjundappa’s land

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North by : own land of 15 ½ guntas and

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South by : defendant No.1’s land of 10 guntas

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`B’ schedule

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Property bearing Sy.No.3/2 of Karenahalli,

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Vemagal Hobli, Kolar Taluk and District, measuring 15½ guntas marked as MNOP in the rough sketch and

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bounded on the

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East by : Chinnappa’s property

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West by : Chinnappa’s and Gramatana property

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North by : Plaintiff’s father’s property

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South by : Schedule `A’ property

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Plaintiff is Basavalingaraju. In the beginning, there were four defendants namely (1)Muniyappa,

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(2)Chinnappa, (3)Sriramappa and (4)Narayanappa.

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The prayer sought by the plaintiff is as under:

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(a) declaring the plaintiff as the absolute owner of the A’ and B’ schedule properties

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(b) direct the first defendant to put the plaintiff in possession of the `A’ schedule property

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(d) All the defendants not to interfere with peaceful possession of MNOP of 15½ guntas.

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(e) Costs of the proceedings.

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The substance of the case of the plaintiff is that

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he is the absolute owner in possession of landed property in Sy.No.3/2 of Karenahalli, Vemagal Hobli, Kolar Taluk to the extent of 20 guntas purchased from the first defendant –Muniyappa on 06.05.1994 under registered sale deed. He further claims that

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subsequently he was obstructed by the second defendant. Plaintiff being aggrieved filed O.S.No.317/97 for permanent injunction. In the said suit court commissioner was appointed and first defendant was the person found to have encroached 4½ guntas in Sy.No.3/2 and it was shown in the sketch as ABCD. The claim of the plaintiff is that defendants are regularly interfering with the plaintiff’s possession and enjoyment of land shown in B’ schedule property of 15½ guntas and they wanted to trim down the extent of schedule property by 4½ guntas. In the sense 20 guntas of land in Sy.No.3/2 was sold to the plaintiff under the registered sale deed above stated by the defendant No.1 alone encroachment of 4½ guntas is claimed to have been made by the said defendant No.1 who is the vendor. In this connection the relief sought by the plaintiff is declaration of ownership of A’ and `B’ schedule

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properties, recovery of possession of land to the extent of 4½ guntas, not to obstruct the way and all the defendants not to interfere with the possession of the plaintiff. Here the total extent of land mentioned in A’ schedule is 4½ guntas and B’ schedule is 15½ guntas. In total they fall together 20 guntas.

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The defendant No.2 filed written statement by denying the plaint averments. Defendant No.2 contended that defendant No.3 is his brother and he is the absolute owner of Sy.No.3/4 measuring 21 guntas of Karenahalli Village. It is further contended that the total land measures 21 guntas a portion of which is 40x60 and construction is started and it is stated that defendant No.2 has perfected his title by way of adverse possession.

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Learned trial Judge framed following issues:

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“(1) Whether the plaintiff proves that he is the absolute owner of the suit A’ & B’ properties?

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(2) Whether the plaintiff further proves that, he has got right of way from Karenahalli Gramatana to the way of Chaldiganahalli?

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(3) Whether he further proves that he was in possession and enjoyment of the `B’ schedule property?

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(4) Whether he further proves the alleged interference?

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(5) Whether the defendants prove that they have perfected their title by way of adverse possession as contended in para 13 of their WS?

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(6) Whether they further prove that this suit is barred by resjudicata?

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(7) Whether the plaintiff is entitled for the decree as sought for in the plaint?

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(8) What order or decree?”

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Learned trial Judge was accommodated with the

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oral evidence of PW-1- A. Basavalingaraju, PW-2-

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H.Muishamagowda and PW-3- C.M.Rangappa and

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documentary evidence Ex.P-1 to P-26 on behalf of plaintiff and DW-1Chinnappa and DW-2 –

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Govindappa on behalf of defendants.

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On conclusion of trial, suit came to be decreed. Being aggrieved by the same defendants have filed this appeal.

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This court framed following substantial question of law on 29.05.2009:

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“Whether the courts below were justified in holding that the plaintiff has established the case of encroachment pleaded on the basis of the commissioner’s report in the earlier proceedings without the said commissioner being examined in this case or offer himself for cross-examination.”

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Learned counsel Sri.D.V.Purushotham for

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plaintiff/respondent submits that defendants are bent upon making their efforts to usurp the schedule property from the plaintiff. They claim that they are in possession of the schedule property and commissioner also is stated to have been appointed and he has filed his report and a sketch wherein schedule property is described as ABCD. The said commissioner is ADLR. Earlier O.S.No.317/97 was filed by the plaintiff in respect of 4½ guntas in Sy.No.3/2 of Karenahalli Village and in the said suit commissioner was appointed and first defendant who encroached 4½ guntas was shown in the sketch. The said suit came to be dismissed. Plaintiff left with no other option, but to present this suit for declaration and possession.

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Defendant No.2 contended that he is the absolute owner of the schedule property and even constructed a house in an area of 40x60.

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Learned counsel for the appellants would submit that the defendants possession is accepted by the plaintiff. The first defendant though had sold the schedule property admittedly the possession of 4½ guntas of land was not delivered. The suit does not contain whole claim, as a matter of fact, the defendants are in possession of entire property in Sy.No.3/2.

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The defendants also claim to be in possession of land in Sy.No.3/4 and it is stated in the written statement that the defendants are in possession of the land measuring 21 guntas in Sy.No.3/4. Now, prime document for consideration would be Ex.P1 which is

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the registered sale deed stated to have been executed by defendant No.1 in favour of plaintiff.

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Earlier, this court had framed substantial question of law stated above, however, the following additional substantial question of law arises for my consideration, which reads thus:

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“Whether the document at Ex.P1-sale deed is not challenged by defendant No.1 which is executed by him in favour of plaintiff, is it open to defendant No.1 or persons claiming under him to contend contrary to the written contents of Ex.P1?”

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Learned counsel for the appellants/defendants would submit that the defendants are the owners of the schedule property and they are in possession of the same and they mention survey number as Sy.No.3/4 in Paragraph 13 of the written statement

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and further contends that when plaintiff himself has admitted the possession of the defendants over the same, the suit is not maintainable. Earlier suit in O.S.No.317/97 was dismissed filed by the plaintiff seeking injunction to the extent of 4½ guntas of land in Sy.No.3/2.

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The surveyor was also appointed in the said case and he submitted a report stating that the first defendant is in possession of 4½ guntas of encroached land. Thus, by virtue of not being in actual possession, the suit of the plaintiff was dismissed and was driven to file the present suit for declaration of title, recovery of possession and injunctory relief.

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In this case defendant No.1 had not contested the matter. The defendant No.1 is dead and his Legal

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representatives have come on record. Defendant

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Nos.2 and 3 are brothers.

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Defendant No.2 is examined as DW.1. His sworn testimony is that they are also the owners in possession of the schedule property in Sy.No.3/2 to the extent of 21 guntas. Plaint averments of plaintiff are denied. The defendants deny the claim of the plaintiff and contend about the dismissal of the suit in O.S.No.317/1997. The defendant Nos.2 and 3 are the

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real brothers and the plaintiff has suppressed the real facts and filed the suit. Defendant No.1 is the absolute owner of the property in Sy.No.3/4 to the extent of 21 guntas of Karenahalli village, Vemagal hobli, Kolar Taluk. There appears typographical error in mentioning survey number. As submitted by both the counsel for the parties, the correct survey number is Sy.No.3/2.

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Now the question is Ex.P1 is the registered sale deed dated 06.05.1994. It is in Kannada language and as I am conversant with Kannada language, I read it and reduce the substance of the same.

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It is the registered sale deed executed in favour of A.Basavalingaraju by Muniyappa S/o Doddamunivenkatappa, Vemagal Hobli. It is the sale deed for conveying the land measuring 20 guntas and at the end of the sale deed, it is stated that he has sold the land to the extent of 20 guntas in Sy.No.3/2 out of 30 guntas and there is a written document to that effect and Sections 91 and 92 of the Indian Evidence Act came into operation wherein, it is stated that oral explanation contrary to the written contents of the document cannot be accepted. It is also to be noted that when a person fails in a suit for injunction on the ground of lack of actual possession, it does not disqualify from going for a suit for declaration and

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delivery of possession, however, subject to law of limitation.

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Thus, 4½ guntas of land in Sy.No.3/2 is admittedly sold by defendant No.1 – Muniyappa in favour of plaintiff. That means, in a property of 20 guntas that was sold to plaintiff, an extent measuring 4½ guntas is an integral part. Regard being had to the fact that the plaintiff’s claim originally based on Ex.P1 - sale deed, Ex.P2 – Mutation register extract to confirm the purchase of the property by the plaintiff and as per Ex.P3 the extent of land in Sy.No.3/2 is measuring 02 acres 08 guntas and 02 guntas of kharab. Similar is the fact in Ex.P4 - RTC extract of the said survey number.

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In the circumstances of the case, the contention of the defendants is not justifiable. Even if defendant No.1 is in possession of the extent of 4½ guntas of

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land that was already sold to the plaintiff, the former has no right or stand for claiming possession in the sold property. Whatever, right, title and interest, he had over the schedule ‘B’ property, that has been already conveyed through Ex.P1. The defence and twist attitude of the defendants is not appreciated.

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The registered sale deed Ex.P-1 comes under Section 91 of Indian Evidence Act which excludes the defendants from claiming otherwise.

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In the circumstances, I find there is no infirmity or perversity in the judgment and decree passed by the trial court in O.S.No.242/2001 and judgment passed by the First Appellate Court in R.A.No.212/2005.

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At this stage, counsel for appellants submits that defendant No.2 pleaded adverse possession and it

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appears to be a defence for the sake of defence without there being any substance in it. It is necessary to clarify that in several places, defendants mention the survey number as Sy.No.3/4 and it is stated in the judgment and in the totality of circumstances, Sy.No.3/4 is not connected to the subject matter of the case and the same should be read as ‘Sy.No.3/2’.

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Substantial questions of law are answered accordingly.

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Appeal is dismissed and judgment and decree of both the courts below are confirmed.

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SBN/HJ

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Sd/JUDGE

Muniyappa S/O Late Doddamunivenkatappa v. Sri Basavalinga Raju S/O K L Anjaneegowda

Case brief

What is this about?

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Muniyappa S/O Late Doddamunivenkatappa v. Sri Basavalinga Raju S/O K L Anjaneegowda

Case brief

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What did the court decide?

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