This court dismissed the second appeal against concurrent findings of lower courts holding that the appellant failed to prove either adverse possession or the grantor's intent to gift the retained property to the appellant, and the respondent failed to prove title.
The appeal is dismissed; Judgment and Decree dated 27.06.2014 in R.A. No. 18/2002 are confirmed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF FEBRUARY, 2022
BEFORE
THE HON’BLE MR.JUSTICE M.G.S.KAMAL
R.S.A.NO.1365 OF 2014(DEC/INJ)
BETWEEN:
SRI. SHIVASWAMY S/O S.B. NANJAIAH MAJOR, R/O SOSALE VILLAGE T. NARASIPURA TALUK MYSORE DISTRICT - 570 001. (PLAINTIFF IN THE LOWER COURT) DEAD BY LR'S SMT. SHANTHAMMA W/O LATE S. SHIVASWAMY AGED ABOUT 55 YEARS D.NO.884, THIRTHANKEREMARGA SIDDARTHA LAYOUT MYSORE - 570 001. … APPELLANT (BY SRI. BIPIN HEDGE, ADVOCATE)
AND:
GAVIAIAH S/O LATE PULLAPPA @ SIDDAIAH MAJOR, R/O SOSALE VILLAGE T. NARASIPURA TALUK MYSORE DISTRICT (DEFENDANT IN LOWER COURT) DEAD BY LRS.
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AGED ABOUT 28 YEARS
AGED ABOUT 35 YEARS
2 TO 4 ARE SONS AND DAUGHTERS OF GAVIAIAH ALL ARE/ R/O SOSALE VILLAGE T. NARASIPURA TALUK MYSORE DISTRICT - 570 001.
…RESPONDENTS
THE REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGEMENT AND DECREE DATED 27.06.2014 PASSED IN R.A. NO. 18/2002 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, T.NARASIPURA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DATED:07.11.1992 PASSED IN OS.NO.743/1989 ON THE FILE OF THE MUNSIFF & JMFC., T. NARASIPURA.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This Regular Second Appeal is filed by the legal representative of the original plaintiff aggrieved by the concurrent finding and conclusion rendered in Judgment and Decree dated 07.11.1992 passed in O.S.No.743/1999 on the file of Civil Judge (Jr.Dn.) and JMFC, T.Narasipura (hereinafter referred to as the Trial Court) and in the Judgment and Decree dated 27.06.2014 passed in R.A.No.18/2002 on the file of Senior Civil judge and JMFC,
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T.Narasipura (hereinafter referred to as the First Appellate Court).
declaration of his title in respect of suit schedule property bearing No.265 measuring 23 guntas of Horalahalli village,
Sosale Hobli of T.Narasipura taluk and consequential relief of permanent injunction and costs. It is the case of the plaintiff that one Pullappa @ Siddaiah had four sons, namely, 1) Nanjaiah 2) Veeraiah 3)Channamallaiah and 4) Gavaiah and that he had effected partition during his lifetime by allotting shares in the family properties to all his four sons, while retaining two properties for his maintenance during his life time one of which is the suit schedule property. It is the further case of the plaintiff that the said Pullappa had expressed his desire and intention that upon his demise, the suit schedule property should be given to the plaintiff being one of his grandsons, son of S.B.Nanjaiah and another property to his another grandson Sri.Siddalingaswamy @ Mari. That there was
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Panchayath Parikhat dated 23.07.1969 in terms of which, the plaintiff has come into possession of the suit schedule property and ever since then, the plaintiff has been in peaceful possession and enjoyment of the suit property and the defendants had no share, right, title and interest over the same. On 31.08.1989, defendants attempted to interfere with the peaceful possession and enjoyment of the suit property by the plaintiff constraining the plaintiff to approach the Court by filing the above suit seeking declaration of title and consequential relief. The plaintiff had also made alternate plea of adverse possession and has sought a declaration of he having perfected the title by way of adverse possession.
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his demise, property be given to the plaintiff, his grandson. Hence, sought for dismissal of suit.
evidence and exhibited five documents as Exs.P1 to P5. Defendant examined himself as D.W.1 and exhibited four documents as Ex.D1 to Ex.D4. The Trial Court, by its judgment and Decree dated 07.11.1992, declined to accept the contention of the plaintiff with regard to his claim of having perfected the title over the suit schedule property by way of adverse possession. While dealing with
the other contentions of the plaintiff with regard to Pullappa-grandfather of the plaintiff having retained the
suit schedule property with an intention that the same to be given to plaintiff after his demise, held that the plaintiff has not produced any evidence with regard to the aforesaid contention. At Paragraph 12, Page No.12 of its Judgment, the Trial Court also has found that similarly defendant also has not placed any material before the Court as to how he acquired the ownership over the suit schedule property except Ex.D2 and Ex.D3-RTC Extracts for the years 1986-87 to 1988-89 regarding his
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possession. In the aforesaid facts and circumstances of the matter, the Trial Court dismissed the suit as plaintiff who had approached the Court seeking declaration ought to have established his title over the suit schedule property.
his
legal representatives is before this Court.
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that the same was not admissible for want of registration.
He submits that the Trial Court and the First Appellate Court also erred in not appreciating the fact that since defendant had set up a specific plea of claiming title in himself, the burden was equally on the part of the defendant to have established his claim of title. That even as observed by the Trial Court, since the defendant failed to establish and prove his title over the property, the Courts below ought to have decreed the suit in favour of the plaintiff. Thus, he submits this appeal gives rise to substantial question of law requiring consideration.
the said property to plaintiff and his another grandson after his demise. That the plaintiff has failed to establish
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and prove the said contention. Equally, as noted by the Trial Court and the First Appellate Court, the defendant who claims independent right, title and interest over the uit schedule property has also not led in cogent evidence justifying his specific contention of he being owner of the property. The plaintiff who had also raised the issue of adverse possession has not established the required ingredients of he occupying the suit schedule property adverse to the interest of the true owners and thereby perfecting his title. The Trial Court and the First Appellate Court, on appreciation of the evidence have declined to accept the said contention and also the contention of the plaintiff of he having become the owner of the property in furtherence to the intention and desire of his grandfather. There is no infirmity in the said findings and conclusion arrived at by the Trial Court and First Appellate Court.
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Sd/JUDGE
bnv
2 issues framed by the court
Whether substantial question of law arises regarding the maintenance of property by grantor for his lifetime and intent to gift to grandson.
Whether burden of proof shifts to defendant who pleaded independent title after plaintiff failed to prove adverse possession or testamentary intent.
1 provisions across 1 enactments
Smt. Shanthamma (Legal Representative of S. Shivaswamy)
Gaviaiah (Deceased) and others
M.G.S. Kamal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
