Dismissed

Smt Halamma v. Smt Alice Martis

Karnataka HC11 Feb 2022RSA/1289/2010

Case brief

AI extract

What is this about?

In this regular second appeal concerning a disputed property suit, the High Court of Karnataka dismissed the appeal filed by the defendant-appellant. The court affirmed the lower courts' holdings that the plaintiffs, as legal heirs of the original purchaser, were the true owners, rejecting the defendant's claims of adverse possession and title via a disputed sale deed. No substantial question of l

What did the court decide?

Dismissed the regular second appeal; confirmed judgment and decree of Trial Court and First Appellate Court declaring plaintiffs as owners and directing delivery of possession.

Smt Halamma Vs Smt Alice Martis — Property and Title | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^TH DAY OF FEBRUARY, 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.1289 OF 2010

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BETWEEN:

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SMT. HALAMMA AGED ABOUT 58 YEARS W/O PUTTANAIKA AGRICULTURIST RESIDDING AT MARALLAIAHNAKOPPALU KASABA HOBLI HUNSUR TALUK - 571 105

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... APPELLANT

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(BY SRI T.P.VIVEKANANDA, ADVOCATE)

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AND:

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SMT ALICE MARTIS AGED ABOUT 71 YEARS W/O LATE FELIX JOSEPH D'MELLO DEAD BY LR'S

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RAYMOND D'MELLO AGED ABOUT 46 YEARS S/O LATE FELIX JOSEPH D'MELLO

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ANTHONY D'MELLO AGED ABOUT 41 YEARS S/O LATE FELIX JOSEPH D'MELLO

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SILVESTER D'MELLO

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AGED ABOUT 40 YEARS S/O LATE FELIX JOSEPH D'MELLO

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ANIL D'MELLO AGED ABOUT 38 YEARS S/O LATE FELIX JOSEPH D'MELLO

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…RESPONDENTS

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(BY SRI MAHANTESH S. HOSMATH, ADVOCATE FOR R1-R5).

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THIS APPEAL IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE AGAINST THE JUDGEMENT & DECREE DTD 19.11.2007 PASSED IN O.S.NO.104/1998 ON THE FILE OF THE CIVIL JUDGE (SENIOR DIVISION), HUNSUR AND JUDGMENT AND DECREE DATED 15/01/2010 PASSED IN R.A.NO.141/2007 ON THE FILE OF THE I ADDITIONAL DISTRICT JUDGE, MYSORE AND ETC.,

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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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The present regular second appeal is filed by the appellant/defendant aggrieved by the concurrent findings and conclusions rendered in the judgment

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and decree dated 19/11/2007 in O.S.No.104/1998 by

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the Civil Judge (Senior Division) Hunsur (for short hereinafter referred to as 'the Trial Court') and the judgment and decree dated 15/01/2010 in RA.No.141/2007 by the I Additional District Judge, Mysore (for short hereinafter referred to as 'the first appellate court').

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The parties are referred to as per their original rankings before the trial court.

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The plaintiffs filed the suit originally before the Munsiff and JMFC Court at Hunsur in OS.No.58/1995 which on re-representation for want of pecuniary jurisdiction and was renumbered as (OS.No.104/1998). The plaintiffs claiming to be the wife and sons respectively of late Felix Joseph D'Mello sought relief of declaration and possession on the premise that the suit schedule property being land

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measuring 6 acres 34 guntas in Sy.Nos.28, 33/8 and 33/11 of Madahalli Kaval also called as palace of Madahalli Mut Kaval, Kasaba Hobli, Hunsur Taluk, Mysure District (for short 'suit schedule property') was purchased by late Felix Joseph D'Mello from His Highness, the Maharaja of Mysore in terms of a deed of sale dated 26/12/1956. That the said late Felix Joseph D'Mello was in possession of the suit schedule property till his death. That upon his demise on 30/06/1984, the plaintiffs being his legal heirs succeeded to the suit schedule property and have been in possession and enjoyment of the same. That since the plaintiffs were residing at Theerthahalli they used to come and cultivate and harvest in the suit schedule property during the seasons. That they had appointed one Huchhamarinayaka as a manager to look after the agricultural operations. That when they came to the suit schedule property in the month of

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May, 1995, to their surprise they found that the defendant had trespassed into suit schedule property. On an enquiry from the Revenue Office, the plaintiffs learnt that taking undue advantage of their absence, defendant had got her name mutated in the revenue records in collusion with the revenue officials. That cause of action for the suit thus arose on and from May 1995. Hence, sought for declaration, possession and mesne profits.

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Upon service of summons, the defendant appeared and filed written statement denying relationship of plaintiffs with Felix Joseph D'Mello. However admitted that Sri Felix Joseph D'Mello purchased the suit schedule property from Maharaja of Mysore under deed of sale dated 26/12/1956 and denied further the plaint averments. That the defendant had earlier filed suit in OS.No.140/1990

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against Huchamarinaika and others for injunction which was dismissed as not pressed. It is contended that originally, the suit schedule property belonged to the Mysuru Palace. That one Smt. Ningamma W/o Narasanaika and Sri Puttanaika S/o Sri Narasanaika, the mother-in-law and the husband respectively of the defendant were the tenants in respect of the suit schedule property cultivating the same right from the year 1950. That earlier suit schedule property was referred to by Sy.No.45 and were sold by His Highness Maharaja of Mysuru in favour of one K. Anthony D'Mello S/o D'Mello. Even after the sale of suit schedule property in favour of Sri P.T. D'Mello an endorsement dated 30/11/1956 was issued by palace estate to Sri K.Anthony D'Mello. Smt. Ningamma and Puttanaiaka continued to cultivate the suit schedule property under the said K.Anthony D'Mello by executing Gutta agreement in his favour. When the

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Karnataka Land Reforms Act came into force, Sri Puttanaika, the husband of the appellant/defendant wanted to file application for registration as tenant in respect of the suit schedule property. However, since the said K.Anthony D'Mello had prevailed upon him, he did not file the declaration. That on 18/02/1989, said Felix Joseph D'Mello son of K.Anthony D'Mello sold the land in favour of the defendant. That the plaintiffs have not been in possession of suit schedule property. That they have perfected their title by way of adverse possession. Hence, sought for dismissal of the suit with exemplary costs.

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The Trial Court based on the pleadings framed/recasted the following issues and additional issues:

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

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(2) Whether the defendant proves that she is the absolute owner of the suit schedule properties as contended in para-12 of her written statement?

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(3) Whether the defendant proves that she is in lawful possession of the suit schedule properties?

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(4) What order or decree?

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ADDITIONAL ISSUES

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(1) Whether the plaintiffs 1 to 5 prove that they have executed G.P.A. in favour of Sri Huchamarinaika to conduct their case?

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(2) Whether the plaintiffs prove their exclusive possession over the suit schedule property till May 1995?

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(3) Whether the plaintiffs prove that they were dispossessed from the suit schedule property during May 1995 by the defendant?

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(4) Whether the plaintiffs are entitled for the relief of declaration?

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The plaintiff No.2 Raymond D'Mello examined himself as P.W.1 and exhibited 8 documents as per Ex.P1 to Ex.P8. On the other hand, the defendant and one Puttanaika have been examined as DWs.1 and 2 and exhibited 41 documents as Exs.D1 to D41. On appreciation of evidence, the Trial Court, by its judgment and decree dated 19/11/2007 decreed the suit declaring that the plaintiffs to be the owners of the suit schedule property and directed the defendant to deliver the possession of the suit schedule property to the plaintiffs within 3 (three) months from the date of decree and further directed for enquiry to be held for current and future mesne profits.

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7. Aggrieved by the same, defendant filed

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regular appeal in RA.No.141/2007 before the first appellate court. Considering the grounds urged in the

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appeal memo, the first appellate court framed the following points for its consideration.

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(1) Whether the application filed by the appellant under Order 14 Rule 5 of CPC is liable to be allowed? If so,

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ADDITIONAL ISSUES

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(1) Whether the defendant proves that the suit filed by the plaintiffs is barred by the principles of law of Limitation?

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(2) Whether the impugned judgment and decree suffers from any illegality or infirmity?

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(3) Whether interference with the impugned judgment and decree is necessary?

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On re-consideration of oral and

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documentary evidence, the first appellate court, by its judgment and decree dated 15/01/2010 dismissed the appeal of the defendant and confirmed the judgment

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and decree passed by the Trial Court. Being aggrieved with the same, the appellant/defendant is before this Court in this regular second appeal.

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Sri T.P.Vivekananda, learned counsel for the appellant/defendant reiterating the grounds urged in the appeal memorandum submitted;

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(i) That no evidence was produced by the plaintiffs for having taken possession of the suit schedule property and cultivating the same before and subsequent to the death of Felix Joseph D'Mello.

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(ii) That the courts below have failed to

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notice that the plaintiffs did not produce any material regarding they reporting death of Felix Joseph D'Mello to the revenue authority and getting their names mutated in revenue records as required under law.

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(iii) That the defendant had produced guttakarar for having paid guttige in respect of suit property from the year 1957 onwards to K.Anthony D'Mello which would establish her possession over the suit schedule property.

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(iv) That the courts below erred in not appreciating the plea of adverse possession on the premise that the possession of the defendant was not adverse to real owner, as she claims ownership under Deed of Sale dated 12/06/1989 - Ex.D2 which executed by Felix Joseph D'Mello S/o K.Anthony D'Mello.

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Hence, he submits that the appeal involves substantial question of law requiring consideration. Hence, sought for allowing the appeal.

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On the other hand, Sri Mahantesh

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S.Hosmatha, learned counsel for the plaintiff Nos.1 to 5 submitted;

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(i) That the plaintiffs have established their right, title and interest over the suit schedule property being wife and sons of late Felix Joseph D'Mello, who had purchased the suit schedule property in terms of registered deed of sale dated 26/12/1956.

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(ii) This being the factual position, the claim of defendant having purchased the same from Felix Joseph D'Mello S/o K.Anthony D'Mello on 12/06/1989 could not evince the credibility.

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(iii) That the trial court and the first appellate court having noticed these aspects

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of the matter have even negated the claim of the defendant regarding plea of adverse possession.

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As such, he submits that no substantial question of law arises in this matter requiring consideration. Hence, sought for dismissal of the appeal.

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Heard the learned counsel for the parties and perused the records.

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There is no dispute with regard to the fact that the suit schedule property which belonged to the Mysore Palace was purchased by Felix Joseph D'Mello S/o Bernard D'Mello in terms of deed of sale dated 26/12/1956 and the said Felix Joseph D'Mello had neither sold nor created any third party interest in respect of suit schedule property in favour of any person. Such being the case, upon demise of the said Felix Joseph D'Mello, the suit schedule property being

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his estate devolved upon his legal representatives namely, the plaintiffs.

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Case of the defendant is that her motherin-law and husband were cultivating the land from the year 1950 onwards under one K.Anthony D'Mello. That subsequently on 12/06/1989 his son Felix Joseph D'Mello sold the suit schedule property in favour of defendant. Alternatively, the defendant has also set up a plea that the suit of the plaintiffs barred by limitation, as such defendant had perfected her title over the suit schedule property by way of adverse possession.

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The aforesaid defense of the defendant cannot be countenanced as admittedly Felix Joseph D'Mello, the husband and father of the plaintiffs was the owner of the suit schedule property having purchased same in terms of deed of sale dated

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26/12/1956 and there being no further conveyance question of Felix Joseph D'Mello S/o K. Anthony D'Mello selling the suit schedule property on 12/06/1989 in favour of the defendant does not arise and any such conveyance does not evince the credibility in the eye of law .

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Since the defendant is claiming to be the owner of the suit schedule property having purchased same on 12/06/1989, the plea of she perfecting the title over the suit schedule property by prescription also cannot be countenanced as it is not her case that she is in possession of the suit property adverse and hostile to the interest of true owner namely, Felix Joseph D'Mello and or his legal representatives namely, plaintiffs.

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The trial court and the first appellate court have taken note of these aspects of the matter and

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the material evidence led by the parties in this regard in detail. That apart the courts below have also taken into consideration suit filed in OS No.140/1990 against Huchamarinaika which was subsequently withdrawn and also the said Huchamarinaika filing complaint against the defendant before the Forest Department to negate the claim of the defendant being in possession of suit schedule property. There is no illegality or infirmity in the concurrent findings of the courts below. In that view of the matter, no substantial question of law is involved in this appeal requiring consideration. In the result, the following.

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ORDER

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i) Regular Second Appeal No.1289/2010 filed by the appellant/defendant is dismissed.

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ii) The judgment and decree dated 19/11/2007 passed in OS.No.104/1998 by the trial court and the judgment and decree dated 15/01/2010 passed in RA.No.141/2010 by the first appellate court are confirmed.

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Sd/JUDGE

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Mkm

Smt Halamma v. Smt Alice Martis

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Smt Halamma v. Smt Alice Martis

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