Dismissed

Sri K S Ananda v. v N Devaraj

Karnataka HC12 Jan 2022RSA/1073/2014

Case brief

AI extract

What is this about?

This Regular Second Appeal was dismissed. The High Court held that no substantial question of law arises. The appellant, being a witness to the impugned sale deed, could not establish an oral partition contrary to the deed's recitals and the vendor's possession without cogent evidence.

What did the court decide?

Regular Second Appeal 1073/2014 dismissed; lower court judgments confirmed; each party to bear own costs.

Sri K S Ananda Vs v N Devaraj — Partition | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY OF JANUARY 2022

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BEFORE

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THE HON’BLE MR.JUSTICE M G S KAMAL

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REGULAR SECOND APPEAL NO. 1073/2014

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BETWEEN:

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SRI. K.S. ANANDA S/O. K.N. SOME GOWDA AGED ABOUT 61 YEARS

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SRI. K.A. SOMASHEKAR S/O. SRI. K.S. ANANDA AGED ABOUT 39 YEARS

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SRI. K.A. RAGHU S/O. SRI. K.S. ANANDA AGED ABOUT 33 YEARS

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ALL ARE RESIDENTS OF KUGUR VILLAGE GOWDHALLI, SHANIVARSANTHE HOBLI SOMWARPET TALUK KODAGU DISTRICT-571 236. ..APPELLANTS

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(BY SRI SHARATH GOWDA G.B, ADV.)

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AND:

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V.N. DEVARAJ S/O. SRI. K.S. NINGAPPA AGED ABOUT 42 YEARS RESIDENT OF KUGUR VILLAGE GOWDHALLI, SHANIVARSANTHE HOBLI SOMWARPET TALUK KODAGU DISTRICT-571 236. ..RESPONDENT

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(BY SRI GIRISH BALADARE, ADV.)

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THIS APPEAL IS FILED UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE AGAINST THE JUDGMENT AND DECREE DATED 26.04.2014 PASSED IN R.A.NO.20/2013 ON THE FILE OF THE I ADDITIONAL DISTRICT JUDGE, KODAGU, MADIKERI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 21.11.2012 PASSED IN O.S.NO.45/2006 ON THE FILE OF SENIOR CIVIL JUDGE, MADIKERI.

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THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This Regular Second Appeal is filed by the appellants/plaintiffs being aggrieved by the judgment and decree dated 26.04.2014 passed in Regular Appeal No.20/2013 on the file of the I Additional District Judge, Kodagu, Madikeri (Hereinafter referred to as First Appellate Court) in and by which the First Appellate Court while dismissing the appeal filed by the appellants/plaintiffs confirmed the judgment and decree dated: 21.11.2012 passed in O.S.No.45/2006 on the file of the Senior Civil Judge, Madikeri (Hereinafter referred to as Trial Court) and the said suit was filed by the appellants/plaintiffs seeking for a relief of declaration and cancellation of the deed of sale dated 25.04.2001.

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The case of the appellants/plaintiffs is that the

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land bearing Sy No.129/1 measuring 5.51 acres situated at Kugur Village, Gowdhalli, Shanivarsanthe, Somwarpet Taluk along with other properties was owned by K.N.Some Gowda - father of the appellant No.1/plaintiff No.1 and grand father of the appellant Nos.2 and 3/plaintiffs No.2 and 3 along with his cousins Puttaswamy Gowda and Lakkegowda. Out of the said 5.51 acres, all family members had jointly sold an extent of 1.30 acres to one Appaiah Shetty. That there was oral partition amongst the said K.N.Some Gowda and his cousins in terms of which remaining 4.21 acres in Sy.No.129/1 along with other properties were allotted to the share of K.N.Some Gowda. Thus, he became the absolute owner of the said property. The said K.N.Some Gowda had six children and plaintiff No.1 is the eldest amongst all the children. That there was another oral partition between K.N.Some Gowda and aforesaid six children in terms of the land measuring 4.21 in Sy No.129/1 was allotted to the share of plaintiff No.1 along with other properties. Thus, plaintiff No.1 became the absolute owner in possession and enjoyment of the

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said property. That plaintiff No.1 has been paying the revenue to the Government. That except the plaintiff, none has any right, title or interest over the suit schedule property. On 15.01.2006, the defendant along with his men trespassed into an area of 4.21 acres of land in Sy. No.129/1 and encroached upon an area of 1.25 acres out of 4.21 acres of land in Sy No.129/1. It is this 1.25 acres out of 4.21 acres of land in Sy.No.129/1 which is the subject matter of the present suit. That the plaintiff complained the illegal act of the defendant to the local police. The defendant who appeared before the local police informed that he had purchased the suit property in terms of deed of sale dated 25.04.2001 from one Smt Gowramma and her children K P Raju and K P Krishnappa. There upon, since the matter is of civil nature, the plaintiff was relegated to the Civil Court. Hence, the plaintiff filed the suit for declaration and cancellation of the aforesaid deed of sale dated 25.04.2001 executed by Smt Gowramma and her children K P Raju and K P Krishnappa in favour of the defendant herein conveying the suit schedule property.

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Upon service of summons, the defendant appeared and filed written statement denying the plaint averments and specifically contended that he had purchased the suit schedule property from Smt Gowramma, K P Raju and K P Krishnappa, the wife and sons respectively of Puttaswamy Gowda in terms of the sale deed dated: 25.04.2011 and ever since then he was in possession, occupation and enjoyment of the suit schedule property as absolute owner thereof. That the suit schedule property was allotted to the share of Puttaswamy Gowda at the earliest point of time in a partition which had taken place in the family and he was in possession and enjoyment of the same during his life time and after his demise, the same devolved to his legal representatives namely Gowramma, K.P.Raju and K.P.Krishnappa. That they have been in continuous possession of the same as absolute owners. It is specifically contended that plaintiff No.1 has also affixed his signature to the deed of sale as a witness and thus, the plaintiffs had full and complete knowledge of the execution of the deed of sale dated: 25.04.2001 by one Smt Gowramma and others. That the

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entire sale consideration was paid to the vendor. Plaintiffs/appellants are residing together under a common roof and common mess. After execution of register deed of sale the revenue records have been mutated in his name and he has invested huge amount of his life savings for improvement and cultivation of the suit schedule property. The schedule property was covered by proper fencing and has coffee plants and that upon his application for change of katha, the Tahasildar had forwarded the same to the concerned revenue authorities attached to Taluk Office at Somwarpet and the revenue authorities had published notice in Form No.21 as required under the Karnataka Land Revenue Act 1964. Since, there was no objection within 30 days, the revenue authorities completed all the formalities required under law by mutating the name of the defendant. The plaintiff who had knowledge of the sale deed had no right, title or interest over the suit schedule property and if at all was aggrieved, ought to have challenged the validity or otherwise of the deed of sale within the period of limitation. That the

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present suit which is filed belatedly, is only to harass the defendant. Hence, sought for dismissal of the suit.

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Trial Court based on the pleadings framed the

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following issues:-

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1 Whether the plaintiffs prove that they are the absolute owners of the suit schedule property?

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Whether the plaintiffs prove that sale deed dated: 25.04.2001 is illegal and created document?

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Whether the plaintiffs prove that possession of the defendant over these properties is illegal?

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Whether the defendant proves that the 1st plaintiff is one of the witness of the sale deed and signatory to if, hence he is having knowledge about sale deed?

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Whether the defendant proves that after death of Puttaswamy Gowda the properties in question devolved upon his wife Gowramma and sons K.P.Raju, K.P.Krishnappa and he continued to be in possession and enjoyment of the same as absolute owner?

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Whether the suit is not properly valued and Court-feet is paid insufficiently?

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Whether the suit is barred by limitation?

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Whether the suit is bad for non-joinder of necessary party?

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

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Recorded the evidence. Plaintiff No.2 who is the son of plaintiff No.1 examined himself as PW-1 and got marked 25 documents as Ex.P1 to Ex.P25. On the other hand the defendant in support of his contentions got examined four witnesses as DW-1 to DW-4 and got marked 14 documents as Ex.D1 to Ex.D14. The Trial Court on appreciation of the evidence of the parties passed the judgment and decree on 21.11.2012 dismissing the suit. Being aggrieved by the same, the appellants/plaintiffs filed an appeal before the First Appellate Court.

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The First Appellate Court after considering the grounds urged in the memorandum of the appeal, framed the following points for consideration as under :-

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Point No.1 : Whether the appellants/ plaintiffs have shown to the satisfaction of this Court that, the judgment and Decree of dismissal of the suit in O.S.No.45/2006 on 21.11.2012 passed by the Trial Court is erroneous, not sustainable in law and liable to be set aside?

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Point No.2 : Whether the appellants/ plaintiffs have shown to the satisfaction of this

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Court that the interference of this Court in the judgment and decree of dismissal of the above said suit in O.S.No.45/2006 passed by the Trial Court is necessary?

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Point No.3 : What order?

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On re-appreciation of documentary and oral evidence, the First Appellate Court dismissed the appeal by confirming the judgment and decree passed by the Trial Court. Being aggrieved by the same, the appellants/plaintiffs are before this Court.

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Sri. Dharmesh, learned counsel for the appellants re-iterating the grounds urged in the memorandum of appeal, submitted that the suit schedule property being part of 4 acres 21 cents in Sy No.129/1 had been duly allotted to the share of K.N.Some Gowda in an oral partition which had been entered into between K.N.Some Gowda and his cousins Puttaswamy Gowda and Lakkegowda. He further submits that there is no document evidencing said oral partitions except Jamabandi at Ex.P5 of the year 2000. He further submits that subsequently there was another oral partition amongst

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K.N.Some Gowda and his six sons including appellant No.1/plaintiff No.1 herein in terms of which the aforesaid 4 acres 21 cents of land was allotted to exclusive share of the appellant No.1/plaintiff No.1 herein. However, there is no documentary evidence even in that regard. He submits that the Trial Court and the First Appellate Court have grossly erred in not adverting to these aspects of the matter and have erroneously dismissed the suit merely taking into consideration the contents of the sale deed at Ex.P1/D1 without taking into consideration the Jamabandi at Ex.P5 of the year 2000. Thus, he submits that the Trial Court and First Appellate Court have erred in not appreciating the material evidence resulting in perversity in passing the judgment and decree. He submits that, the deed of sale dated: 25.04.2001 executed by the wife and children of Puttaswamy Gowda in favour of defendant No.1 is without any authority, as such the same is not legal and valid requiring the same to be cancelled. Thus he submits that substantial question of law involves in the matter requiring consideration in favour of the appellants/plaintiffs.

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Sri. Girish Baladare, learned counsel for the respondent submits that the Trial Court and First Appellate Court have considered the oral and documentary evidence and in concurrence with each other have come to the conclusion that the appellants/plaintiffs have failed to establish oral partition in claiming their right over the suit schedule property. He further submits that plaintiff No.1 is witness to the sale deed dated: 25.04.2001 at Ex.P4/D1 which fact has been not disputed or disproved by the appellants/plaintiffs. Drawing attention of this Court to para No.19 of the judgment of the First Appellate Court wherein the recital of the sale deed at Ex.P4/D1 has been extracted, he submits that the said document being a registered document to which the plaintiff was a signatory as a witness is over-whelming and in the absence of any cogent and acceptable evidence produced by the plaintiff, no question of law involves in the matter and seeks for dismissal of the appeal.

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Heard learned counsel for both the parties.

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The fact that the deed of sale dated: 25.04.2001 executed and registered by Gowramma, K.P.Raju and K.P.Krishnappa being the legal heirs of Puttaswamy Gowda conveying the suit schedule property in favour of defendant No.1 to which plaintiff No.1-K.S.Ananda has been the signatory as a witness, is well established. The said sale deed is executed in the year 2001 and the challenge to the sale deed by way of a suit is in the year 2006. Factum of plaintiff No.1 being the signatory to the deed of sale at Ex.D1 as a witness has been categorically pleaded by the defendant in his written statement. Thus the plaintiff No.1 had sufficient knowledge/notice of the said fact. Despite the same, plaintiff No.1 has neither disputed, controverted nor led any evidence by entering into the witness box disproving his signature on the said document. Plaintiff No.2 who examined himself as PW-1 is the son of plaintiff No.1, to a specific question in the crossexamination with regard to signature of Plaintiff No.1 on the deed of sale has neither denied nor admitted. However, he says that the name which is mentioned therein is that of the plaintiff No.1. This crucial aspect of

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the matter has been well taken note of by the Trial Court and the First Appellate Court with regard to the knowledge of appellant No.1/plaintiff No.1 in execution of deed of sale dated: 25.04.2001 by Gowramma and two others in favour of defendant No.1 conveying the schedule property.

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As regards the factum of oral partition, appellants/plaintiffs have not produced any independent evidence except Jamabandi. However, in the sale deed to which plaintiff No.1 was a signatory as a witness, categorically records that schedule property was the ancestral property having been allotted to the share of Puttaswamy Gowda, the husband and father respectively of the vendors therein and was in their possession for over 50 years and that they have absolute right to convey the property. This recital in the sale deed coupled with the fact that appellant No.1/plaintiff No.1 has signed as a witness to the said document, probablises the case of defendant No.1 that schedule property has been allotted to the share of Puttaswamy Gowda. Plaintiffs have not led

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any tenable and cogent evidence to disprove the aforesaid factual aspect of the matter.

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On holistic reading of the pleading, evidence and the reasoning given by the Trial Court and the First Appellate Court, this Court is of the considered opinion that no substantial question of law arises for consideration in this appeal requiring consideration. Hence, the following:

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ORDER

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Regular Second Appeal 1073/2014 is dismissed. The judgment and decree dated 26.04.2014 passed by the I Additional District Judge, Kodagu, Madikeri in Regular Appeal No.20/2013 and the judgment and decree dated: 21.11.2012 passed by Senior Civil Judge, Madikeri in O.S.No.45/2006 is confirmed.

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In the circumstances, parties to bear their own costs.

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Sd/JUDGE

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Sri K S Ananda v. v N Devaraj

Case brief

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Sri K S Ananda v. v N Devaraj

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