Dismissed

Smt. Gowramma v. State of Karnataka

Karnataka HC3 Aug 2021RSA/699/2013

Case brief

AI extract

What is this about?

The High Court dismissed three second appeals filed by plaintiffs challenging judgments dismissing their suits for declaration and permanent injunction regarding government Gomal land. The court held that since lower courts recorded concurrent findings on facts unsupported by plaintiffs' evidence of adverse possession, no substantial question of law arose.

What did the court decide?

The three regular second appeals were dismissed as devoid of merits and without framing any substantial question of law.

Smt. Gowramma Vs State of Karnataka — 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 03^RD 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.701 OF 2013 (DEC & INJ) C/w

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REGULAR SECOND APPEAL NO.699 OF 2013 & REGULAR SECOND APPEAL NO.700 OF 2013

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RSA 701 of 2013

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1 . Sri P Ramesh D/O late Pillappa Aged about 47 Years Resident of Seethanayakanahalli Village Haragadde Post Jigani Hobli, Anekal Taluk Bangalore Urban District -562106.

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...Appellant

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(By Sri H C Shivaramu, Advocate)

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AND

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1 . State Of Karnataka By Its Revenue Secretary M S Building Dr B R Ambedkar Veedhi Bengaluru-560 001.

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2 . The Tahsildar Anekal Taluk, Anekal Bangalore Urban District -562 106.

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..Respondents

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(By Smt. Anitha H R, HCGP for R1 and R2)

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This Regular Second Appeal filed under Section 100 of Code of Civil Procedure against the judgment & decree dated 21.3.2013 passed in R.A.No.222 of 2011 on the file of I/c Presiding Officer, Fast Track Court-VI, Anekal, Bangalore Rural District, Bangalore, dismissing the appeal and confirming the judgment and decree dated 30.3.2011 passed in OS.No.4 of 2006 (Old No.46 of 2006) on the file of Civil Judge (Sr.dn) & JMFC., Anekal.

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RSA 699 of 2013

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BETWEEN

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1 . Smt. Gowramma

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Since deceased by her LRs.

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2 . Sri P Basavaraju S/o late Pillappa, Aged about 52 years

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3 . Sri P Krishnappa S/o Late Pillappa, Aged About 50 years

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4 . Sri P Ramesh S/o late Pillappa, Aged about 47 years

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5 . Sri P Prasanna S/o late Pillappa, aged about 44 years,

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All are resident of Seethanayakanahalli Village Haragadde Post Jigani Hobli, Anekal Taluk Bangalore Urban District -562106

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Appellants 1, 3, 4 and 5 are Represented by GPA Holder Appellant No.2 R/at Seethanayakanahalli Village Haragadde Post Jigani Hobli, Anekal Taluk Bangalore Urban District -562106.

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...Appellants

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(By Sri H C Shivaramu, Advocate)

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AND

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1 . State of Karnataka By its Revenue Secretary M S Building Dr B R Ambedkar Veedhi Bengaluru-560 001.

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2 . The Tahsildar Anekal Taluk, Anekal Bangalore Urban District -562 102.

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…Respondents

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(By Smt. Anitha H R, HCGP for R1 and R2 )

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This Regular Second Appeal filed under Section 100 of Code of Civil Procedure against the judgment & decree dated 21.3.2013 passed in R.A.No.269 of 2011 on the file of I/c Presiding Officer, Fast Track Court-VI, Anekal, Bangalore Rural District, Bangalore, dismissing the appeal and confirming the judgment and decree dated 30.3.2011 passed in OS.No.5 of 2006 on the file of Senior Civil Judge & JMFC., Anekal.

RSA 700 of 2013

BETWEEN

1 . Sri P Krishnappa D/o Late Pillappa aged about 50 years Resident of Seethanayakanahalli Village Haragadde Post Jigani Hobli, Anekal Taluk Bangalore Urban District -562106.

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...Appellant

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(By Sri H C Shivaramu, Advocate)

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AND

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1 . State of Karnataka By its Revenue Secretary M S Building Dr B R Ambedkar Veedhi Bengaluru-560 001.

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2 . The Tahsildar Anekal Taluk, Anekal Bangalore Urban District -562 106.

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….Respondents

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(By Smt. Anitha H R, HCGP for R1 and R2 )

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This Regular Second Appeal filed under Section 100 of Code of Civil Procedure against the judgment & decree dated 21.03.2013 passed in R.A.No.221 of 2011 on the file of I/c Presiding Officer, Fast Track Court-VI, Anekal, Bangalore Rural District, Bangalore, dismissing the appeal and confirming the judgment and decree dated 30.3.2011 passed in OS.No.12 of 2006 on the file of Senior Civil Judge & JMFC., Anekal.

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These Appeals coming on for admission, this day, the court delivered the following:

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J U D G M E N T

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These appeals are filed by the plaintiffs challenging the judgment and decree dated 21^st March, 2013 passed in Regular Appeals No.222, 269 and 221 of 2011 on the file of Fast Track Court-VI, Anekal, Bangalore Rural District, Bangalore, confirming the judgment and decree dated 30^th March, 2011, passed in OS No.4 of 2006 (old OS No.46 of 2006); 5 of 2006 (old OS No.3 of 2005); and 12 of 2006 (old OS No.4 of 2005) respectively, on the file of the Civil Judge (Sr. Dn.) and JMFC, Anekal, dismissing the suit of the plaintiffs.

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For the sake of convenience, the parties in this appeal are referred to with their status and rank before the trial Court.

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It is the case of the plaintiffs that the Survey No.112 of Lingapura village is admeasuring 39 acre 12 gunta and the plaintiffs in the aforementioned suits are in possession of the same as unauthorised occupants and as such, the plaintiffs have perfected their title by adverse possession. It is the case of the

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plaintiffs that they are in possession of the property unauthorisedly and are in cultivation of the suit schedule property from 1973, till the date of filing of the suit. The plaintiffs have made certain development in the suit schedule property and same is within the knowledge of the defendants, however, defendants have not taken any steps to evict them till the filing of the suit. It is further averred in the plaint that the officials of the second defendant are interfering with the plaintiffs’ peaceful possession of the suit schedule property and as such, plaintiffs have filed suits before the trial Court seeking relief of declaration and permanent injunction.

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After service of notice, the defendants entered appearance and filed detailed written statement contending that the Survey No.112 of Lingapura village, which is totally measuring 39 acre 12 guntas is a gomal land and in the possession of the State Government and as such, denied the averments made in the plaint to the effect that plaintiffs are in possession of the suit schedule land as unauthorised occupants.

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The trial Court, after considering the framed the issues for its consideration:

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In OS No.4 of 2006:

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Whether the plaintiff proves that he has perfected the title by way of adverse possession under the law of prescription against the defendant in respect of the suit schedule property?

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Whether the plaintiff proves that he is in peaceful possession and enjoyment of the suit schedule property from way back 1973 within the knowledge of the defendants?

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Whether the plaintiff proves that the defendants illegally attempted and interfere with his possession in respect of the suit schedule property on 17/12/2005?

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In OS No.5 of 2006:

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Whether the plaintiff proves that he has perfected the title by way of adverse possession under the law of prescription against the defendants in respect of the Suit Schedule Property?

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Whether the plaintiff proves that he is in peaceful possession and enjoyment of the suit schedule

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property from way back 1973 within the knowledge of the defendants?

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Whether the plaintiff proves that on 16/12/2005 the defendants illegally attempted and interfere with his possession in respect of the Suit Schedule Property?

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What decree or order?

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In OS No.12 of 2006:

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Whether the plaintiff proves that he has perfected the title by way of adverse possession under the law of prescription against the defendants in respect of the Suit Schedule Property?

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Whether the plaintiff proves that he is in peaceful possession and enjoyment of the suit schedule property from way back 1973 within the knowledge of the defendants?

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Whether the plaintiff proves that on 19/12/2005 the defendants illegally attempted and interfere with his possession in respect of the Suit Schedule Property?

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What decree or order?

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Plaintiff in OS No.4 of 2006 was examined as PW1 and

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examined another witness as PW2. Plaintiff has produced 9 documents and same were marked as Exhibits P1 to P9; Plaintiffs in OS No.5 of 2006 have examined two witnesses as PWs.1 and 2 and produced five documents and same were marked as Exhibits P1 to P5; and Plaintiff in OS No.12 of 2006 was examined as PW1 and examined another witness as PW2 and produced five documents and same were marked as Exhibits P1 to P5. Defendants have examined the Tahsildar as DW1 and produced three documents and same were marked as Exhibits D1 to D3. The trial Court, after considering the materials on record, by its judgment and decree dated 30^th March, 2011, dismissed the suits and being aggrieved by the same, plaintiffs preferred Regular Appeals before the First Appellate Court challenging the judgments and decree passed by the trial Court. In all the appeals, defendants entered appearance and resisted the appeals. The First Appellate Court, after re-appreciating the material on record, by its judgment and decree dated 21^st March, 2013 dismissed all the appeals and as such, confirmed the judgments and decree passed by the trial Court. Being

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aggrieved by the judgments and decree passed by the First Appellate Court, the plaintiffs have preferred these three second appeals.

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Since common question of law and facts are involved in all these appeals, by consent of parties, the appeals were taken up together.

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I have heard Sri H.C. Shivaramu, learned counsel appearing or the appellant-plaintiffs and Smt. Anita H.R., learned HCGP for the State.

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Sri H.C. Shivaramu, learned counsel appearing for the appellants contended that the plaintiffs are agriculturists and are in peaceful possession of the suit schedule property, however, the trial Court has not considered the documents produced by the plaintiffs in the right perspective and same has caused miscarriage of justice to the plaintiffs. He further contended that the name of the plaintiffs were reflected in RTCs for a considerable length of time and in view of the Circular dated 09^th November, 1994 issued by the Government, the names of the plaintiffs were removed from RTC extracts. He contended that

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the impugned judgment and decree passed by both the courts below requires to be interfered with in these appeals.

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Per contra, Smt. Anita H.R., learned HCGP argued that the survey No.112 of Lingapura village, totally measuring 39 acre 12 guntas is a gomal land and belong to the State Government and as such, both the courts below have rightly dismissed the suits of the plaintiffs, after appreciating the material on record and as such, she argued that the appeals are misconceived and require to be rejected.

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Having heard the learned counsel appearing for the parties, I have carefully examined the findings of the courts below. Plaintiffs have filed suits seeking relief of declaration and permanent injunction. Perusal of documents produced by defendants would clearly indicate that suit schedule properties are part of Survey No.112 of Lingapura village, which admittedly, a Gomal land. Though the plaintiffs have stated that they are in possession of the land and have perfected their title by adverse possession, however, the perusal of the evidence of the plaintiffs would indicate that plaintiffs are in unauthorised

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occupation of the suit schedule property. However, in order to prove their title by adverse possession, it is the burden on the plaintiffs to plead and prove that on which date their possession has become adverse to defendants. There is no evidence on the part of plaintiffs to prove the ingredients of adverse possession. It is also forthcoming from the evidence that RTC extracts pertaining to certain period stood in the names of plaintiffs, however, same was discontinued and there is no reason in the evidence for removing their names from RTC extracts and on the other hand the plaintiffs have not challenged the action of removing their names from RTCs by the respondents before the Competent Court. It is also forthcoming from the documents that the land in question is a gomal land, ear-marked for the purpose of grazing cattle and in that view of the matter the finding recorded by the trial Court is just and proper which requires no interference.

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I have also carefully examined the finding recorded by the First Appellate Court wherein the First Appellate Court, after re-appreciating the documents on record, particularly Exhibit D1,

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held that the RTC pertaining to the land in Survey No.112 of Lingapura village, measuring 39 acre 12 guntas as per Exhibit D3 stood in the name of the State Government. The First Appellate Court has also recorded a finding that mere possession does not amount to adverse possession, unless same is pleaded and proved before the trial Court with cogent documents. However, in the instant case, no such documents are produced by the plaintiffs to support their contention, and as such both the courts below, after considering the material on record, appreciated the oral and documentary evidence, produced by the parties and rightly dismissed the suit and as such I find no perversity in the impugned judgments and decree passed by the courts below and as such, same stand affirmed in these appeals. In view of the fact that both the courts below have concurrently recorded a finding against the plaintiffs on facts, it is also useful to refer to the law declared by the Apex Court in the case In this regard, it is useful to refer to the judgment of the Hon'ble Supreme Court in the case of LAXMIDEVAMMA AND OTHERS v. RANGANATH AND OTHERS reported in (2015)4 SCC 264,

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whereunder at paragraphs 13 and 16 of the judgment, it is observed as under:

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“13. Based upon oral and documentary evidences, the courts below have recorded concurrent findings that the plaintiffs are the owners of 'A' schedule property. While so, the High Court ignoring the material evidence, erred in interfering with the concurrent findings of fact. …

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14 and 15. xxx xxx xxx

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16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that plaintiffs have established their right in 'A' schedule property. In the light of concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for re-appreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the 'A' schedule property for road and that she could not have full fledged right and on that premise proceeded to hold that declaration to plaintiffs' right cannot be granted. In exercise of jurisdiction under Section 100 C.P.C., concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary

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evidence and the judgment of the High Court cannot be sustained.”

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In the case of THULASIDHARA AND ANOTHER v. NARAYANAPPA AND OTHERS reported in (2019) 6 SCC 409, at paragraphs 7.2 and 7.3 of the judgment, the Hon’ble Supreme Court has observed thus:

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“7.2. As observed and held by this Court in the case of Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, (1999)3 SCC 722, in the Second Appeal under Section 100 of the CPC, the High Court cannot substitute its own opinion for that of the First Appellate Court, unless it finds that the conclusions drawn by the lower Court were erroneous being:

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(i) Contrary to the mandatory provisions of the applicable law;

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(ii) Contrary to the law as pronounced by the Apex Court;

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(iii) Based on inadmissible evidence or no evidence.

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It is further observed by this Court in the aforesaid decision that if First Appellate Court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of

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procedure requiring interference in Second Appeal. It is further observed that the Trial Court could have decided differently is not a question of law justifying interference in Second Appeal.

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7.3. When a substantial question of law can be said to have arisen, has been dealt with and considered by this Court in the case of Ishwar Dass Jain v. Sohan Lal, (2000) 1 SCC 434. In the aforesaid decision, this Court has specifically observed and held:

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10. Under Section 100 CPC, after the 1976 Amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the judgment of the first appellate court without doing so.

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11. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered, would have led to an opposite conclusion.

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12. The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible.

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13. In either of the above situations, a substantial question of law can arise.”

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The Hon’ble Supreme Court in the case of S. SUBRAMANIAN v S RAMASAMY ETC. reported in AIR 2019 SCC

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3056, at paragraphs 8.1, 8.2 and 8.5 of the judgment, has observed thus:

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“8.1. … As per catena of decisions of this Court, while deciding the second appeal under Section 100 of the CPC, the High Court is not required to re-appreciate the entire evidence on record and to come to its own conclusion and the High Court cannot set aside the findings of facts recorded by both the Courts below when the findings recorded by both the Courts below were on appreciation of evidence. That is exactly what is done by the High Court in the present case while deciding the second appeals, which is not permissible under the law.

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8.2. Even otherwise, it is required to be noted that as per catena of decisions of this Court and even as provided under Section 100 of the CPC, the Second Appeal would be maintainable only on substantial question of law. The Second Appeal does not lie on question of facts or of law. The existence of ‘a substantial question of law’ is a sine qua non for the exercise of the jurisdiction under Section 100 of the CPC. As observed and held by this Court in the case of Kondiba Dagadu Kadam, in a second appeal under Section 100 of the CPC, the High Court cannot substitute its own opinion for that of the First Appellate Court, unless it finds that the conclusions drawn by the lower Court were erroneous….

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8.3. and 8.4. xxx xxx xxx

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8.5. As observed hereinabove, while passing the impugned Judgment and Order, the High Court has reappreciated the entire evidence on record as if the High Court was deciding the first appeal. By the impugned Judgment and Order, while exercising the powers under Section 100 of the CPC and on re appreciation of entire evidence on record, the High Court has set aside the findings of facts recorded by both the Courts below on blending of the suit properties with the joint family properties. The same is wholly impermissible. So far as the facts are concerned, the First Appellate Court is the final court and unless and until the findings of facts recorded by the Courts below are found to be manifestly perverse and/or contrary to the evidence on record, the High Court would not be justified in setting aside the findings of facts recorded by the Courts below which were on appreciation of evidence on record. It is not permissible for the High Court to re appreciate the entire evidence on record and come to its own finding when the findings recorded by the Courts below, more particularly, the First Appellate Court are on appreciation of evidence. Therefore, the procedure adopted by the High Court while deciding the Second Appeals, is beyond the scope and ambit of exercise of its powers under Section 100 of Code of Civil Procedure. High Court to reappreciate the entire evidence on record and come to its own finding when the findings recorded by the Courts

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below, more particularly, the First Appellate Court are on appreciation of evidence. Therefore, the procedure adopted by the High Court while deciding the Second Appeals, is beyond the scope and ambit of exercise of its powers under Section 100 of the CPC.”

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It is settled principle of law that even if two inferences are possible in a given set of circumstances, the finding recorded by the lower appellate court is binding on the high Court. In this connection, it is relevant to deduce the observation made by the Hon'ble Supreme Court in the case of DODDANARAYANA REDDY (DEAD) BY LRs AND OTHERS v. C. JAYARAMA REDDY (DEAD) BY LRs AND OTHERS reported in (2020)4 SCC 649, wherein at paragraphs 25 and 26 of the judgment the Hon'ble Supreme Court has observed thus:

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“ 25. The question as to whether a substantial question of law arises, has been a subject matter of interpretation by this Court. In the judgment reported as Karnataka Board of Wakf v. Anjuman-E- Ismail MadrisUn-Niswan, it was held that findings of the fact could not have been interfered within the second appeal. This Court held as under:

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“12. This Court had repeatedly held that the power of the High Court to interfere in second appeal under Section 100 CPC is limited solely to decide a substantial question of law, if at all the same arises in the case. It has deprecated the practice of the High Court routinely interfering in pure findings of fact reached by the courts below without coming to the conclusion that the said finding of fact is either perverse or not based on material on record.

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13. In Ramanuja Naidu v. V. Kanniah Naidu (1996 3 SCC

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392), this Court held:

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"It is now well settled that concurrent findings of fact of trial court and first appellate court cannot be interfered with by the High Court in exercise of its jurisdiction under Section 100 of Civil Procedure Code. The Single Judge of the High Court totally misconceived his jurisdiction in deciding the second appeal under Section 100 of the Code in the way he did."

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14. In Navaneethammal v. Arjuna Chetty (1996 6 SCC

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166), this Court held :

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"Interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to re-appreciate the evidence just to replace the findings of the lower courts. … Even assuming that another view is possible on a reappreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on no material."

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15. Again in Secy., Taliparamba Education Society v. Moothedath Mallisseri Illath M.N. (1997 4 SCC 484), this Court held:

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"The High Court was grossly in error in trenching upon the appreciation of evidence under Section 100 CPC and recording reverse finding of fact which is impermissible."

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26. In a judgment reported as Kondiba Dagadu Kadam v. Savitkibai Sopan Gujar & Ors., this Court held that from a given set of circumstances if two inferences are possible then the one drawn by the lower appellate court is binding on the High Court. In the said case, the First Appellate Court set aside the judgment of the trial court. It was held that the High Court can interfere if the conclusion drawn by the lower court was erroneous being contrary to mandatory provisions of law applicable or if it is a settled position on the basis of a pronouncement made by the court or based upon inadmissible evidence or arrived at without evidence. This Court held as under:

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“5. It is not within the domain of the High Court to investigate the grounds on which findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court had given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal.

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Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the tower appellate court were erroneous being contrary to the mandatory provisions of law applicable of its settled position on the basis of pronouncements made by the apex Court, or was based upon in inadmissible evidence or arrived at without evidence. ”

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In that view of the matter, following the law declared by the Hon'ble Supreme Court in the cases referred to supra and for the foregoing reasons, so also since the appellants have not made out a case for framing of substantial question of law as required under Section 100 of Code of Civil Procedure, appeals are liable dismissed as devoid of merits at the admission stage itself and are accordingly dismissed.

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Sd/JUDGE

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lnn

Smt. Gowramma v. State of Karnataka

Case brief

What is this about?

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Smt. Gowramma v. State of Karnataka

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