Dismissed

B.S. Gangadharaiah v. Smt. Shivamma

Karnataka HC13 Jan 2022RSA/1588/2013

Case brief

AI extract

What is this about?

This regular second appeal challenged the dismissal of a suit for declaration of title and permanent injunction. The High Court found the appellant failed to prove vendor's title and that respondents were in settled possession, finding no error in the lower courts and no substantial question of law.

What did the court decide?

Regular second appeal dismissed; lower court judgment and decrees confirmed.

B.S. Gangadharaiah Vs Smt. Shivamma — Succession and Inheritance | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF JANUARY, 2022 BEFORE

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THE HON’BLE MR.JUSTICE M.G.S.KAMAL

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REGULAR SECOND APPEAL NO.1588 OF 2013

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BETWEEN:

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B.S. GANGADHARAIAH S/O LATE SANNARANGAIAH AGED 40 YEARS R/AT BITTUGOUNDANAHALLI GUBBI TALUK TUMKUR DISTRICT REPRESENTED BY HIS GPA HOLDER SMT M B KEMPAMMA W/O B S MUNIRANGAIAH AGED 48 YEARS VINAYAKA BLOCK, K.R.NAGAR TOWN MYSORE DISTRICT-571 602

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... APPELLANT

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(BY SRI K.G.SADASHIVAIAH, ADVOCATE)

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AND:

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SMT. SHIVAMMA W/O M N KRISHNE GOWDA AGED ABOUT 55 YEARS R/AT NO 2/226, VINAYAKA BADAVANE BEHIND TAHSILDAR'S QUARTERS K R NAGAR TOWN MYSORE DISTRICT 571 602.

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M VENKATARAM S/O MARIGOWDA AGED ABOUT 55 YEARS R/AT HEBBAL VILLAGE K R NAGAR TALUK MYSORE DISTRICT 571 602.

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MAHADEVA S/O MARIGOWDA AGED ABOUT 53 YEARS R/AT HEBBAL VILLAGE K R NAGAR TALUK MYSORE DISTRICT 571 602.

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RAMACHANDRA S/O MARIGOWDA AGED ABOUT 50 YEARS R/AT HEBBAL VILLAGE, K R NAGAR TALUK MYSORE DISTRICT 571 602.

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SMT BALE GOVINDAMMA SINCE DEAD BY LRS

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5(A) SMT. MANJULA W/O SHASHI AGED ABOUT 36 YEARS R/AT NO 30 12TH CROSS NAVILU RASTE A AND B BLOCK KUVEMPUNAGAR MYSORE 570 023.

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5(B) NEELAKANTA S/O BALE GOVINDAMMA AGED ABOUT 44 YEARS R/AT 3RD CROSS VINAYAKA BADAVANE K R NAGAR, MYSORE DISTRICT 571 602

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5(C) SMT TULASI

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W/O JAYARAM AGED ABOUT 42 YEARS R/AT 3RD CROSS VINAYAKA BADAVANE K R NAGAR MYSORE 571 602.

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5(D) UMESHA

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S/O LATE JAYARAM AGED ABOUT 21 YEARS R/AT 3RD CROSS VINAYAKA BADAVANE K R NAGAR MYSORE DISTRICT 571 602

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…RESPONDENTS

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(BY SRI GURUPRASAD B.R. AND SMT. SANDYA RAO P., ADVOCATE FOR R1-R4; R5(B) AND R5(D)-SERVED BUT UNREPRESENTED; NOTICE TO R5(A) AND R5(C) IS HELD SUFFICIENT.

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THIS APPEAL IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE AGAINST THE JUDGEMENT & DECREE DTD 29.06.2013 PASSED IN R.A.NO.136/2011 ON THE FILE OF II ADDITIONAL DISTRICT JUDGE, MYSURU DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 15.02.2011 PASSED IN OS.NO.162/2007 ON THE FILE OF CIVIL JUDGE (SENIOR DIVISION) AND JMFC, K.R.NAGAR.

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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/plaintiff represented by his power of attorney holder one Smt. M.B.Kempamma, aggrieved by the judgment and decree dated 29.06.2013 passed in R.A.No.136/2011 on the file of the II Additional District Judge, Mysuru (hereinafter referred to as 'the First Appellate Court') in and by which, the first appellate court while dismissing the appeal of the plaintiff confirmed the judgment and decree dated 15.02.2011 passed in O.S.No.162/2007 on the file of

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the Civil Judge (Senior Division) and JMFC at K.R.Nagar (hereinafter referred to as 'the Trial Court').

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The appellant/plaintiff filed the above suit in OS.No.162/2007 against the

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respondents/defendants for relief of declaration to declare him to be the owner of the suit schedule

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property being land measuring 6 guntas including converted land measuring 0.4 1/2 guntas situated in Sy.No.71/9A1A at Kantenahalli village, K.R.Nagar Taluk and consequential relief of permanent injunction restraining the defendants from interfering with the possession and enjoyment of the same and also a direction to the defendant No.1 to remove one Smt.Sharadha inducted by her in the shed within the suit schedule property.

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The case of the appellant/plaintiff is that, he is the absolute owner of 10 guntas of land in Sy.No.71/9A1A having purchased the same, under a deed of sale dated 1/05/1992 registered on 15/05/1992. That Smt. M.B.Kempamma, his power of attorney holder is the wife of his brother who is a Government servant, working at Periyapattana. That one Mr.Devadas had filed the suit against said

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Smt.M.B.Kempamma before the Civil Judge K.R.Nagar in OS.No.123/1994 in which the original power of attorney executed by the appellant/plaintiff in favour of his attorney has been produced. That since his power of attorney holder could not go near the land for many years one person had encroached 4 guntas of land belonging to the appellant/plaintiff. That the appellant/plaintiff being desirous of constructing a house had applied for change of land usage in respect of remaining land measuring 4 1/2 guntas within 6 guntas which was granted on 25/08/2000. The respondents/defendants having no manner of right in the suit schedule property were trying to trespass into the same by creating false documents in collusion with Municipal Authority. That a commissioner had been appointed in OS.No.123/1994 who had submitted a report reflecting situation and measurement of land in Sy.No.71/9A1A. That about 15 days prior to filing of

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the suit, respondents/defendants tried to trespass into the suit schedule property and tried to take possession of the shed constructed by the appellant/plaintiff on the suit schedule property. The Police as well as Municipal Authority did not take any action and hence constraining the appellant/plaintiff to file the above suit.

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The respondents/defendants appeared and defendant No.1, in her written statement while denying the case of the appellant/plaintiff contended that she is the absolute owner in possession of the shed with vacant site measuring 10 x 50 ft situated at Hospital block, Vinayaka Extension, K.R.Nagar Town bearing Municipal Khatha and Assessment No.3992/3832/A having purchased the same from one B.L.Vishvanatharao and his sons under a deed of sale dated 01/03/1991 and that she constructed a house

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therein in the year 1993 as per licence. The respondent No.2/defendant No.2 claimed ownership over the property measuring 37 x 82 ft bearing Municipal Khatha and Assessment No.3993/3833 on the premise that the same was purchased by her grandfather from one Veerasetty under a deed of sale dated 15/12/1945 and that in the family partition same was allotted in favour of respondent No.2/defendant No.2 as his share, as such he is in possession of the same. The respondent No.5/defendant No.5 claimed to be the owner in possession of a house with vacant site measuring 33 x 33 ft having purchased the same from one Honnachari under a deed of sale dated 18/09/1968 and that he constructed a Mangalore tiled roof house and has been living thereon. It is further contended by the respondents/defendants that husband of power of attorney holder of the plaintiff (brother of plaintiff)

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being the Second Division Surveyor working in a Government, by misusing his office had fabricated the documents to knock off the property belonging to the respondents/defendants. Hence, sought for dismissal of the suit.

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The Trial Court based on the pleadings framed the following issues:

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(1). Whether the plaintiff proves that he is the absolute owner in possession of the schedule property?

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(2) Whether plaintiff proves the alleged interference by the defendants?

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(3) Whether the plaintiff proves that defendant No.1 is in illegal possession of shed within the suit property?

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(4) Whether suit is bad for nonjoinder of necessary parties and misjoinder of parties?

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(5) Whether valuation made and court fee paid is correct?

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(6) Whether plaintiff is entitled to the relief as sought?

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(7) What order or decree?

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Smt. M.B.Kempamma, the power of

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attorney holder of the appellant/plaintiff examined herself as P.W.1 and exhibited 16 documents as per Ex.P1 to Ex.P16. Defendant Nos.1 and 2 examined themselves as DWs.1 and 2 and exhibited 24 documents as Exs.D1 to D24. On appreciation of evidence, the Trial Court dismissed the suit of the appellant/plaintiff by its judgment and decree dated 15/02/2011. Aggrieved by the same, appellant/plaintiff through his said power of attorney holder filed regular appeal in RA.No.136/2011 before the First Appellate Court. Considering the grounds

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urged in the appeal memo, the First Appellate Court

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framed the following points for its consideration.

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(1) Whether the appellant / plaintiff has made out a case to interfere with the judgment passed by the trial court?

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(2) Whether the plaintiff proves that there is perverse in the order passed by the trial court?

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(3) What order?

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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 29/06/2013 dismissed the

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appeal of the appellant/plaintiff and confirmed the judgment and decree passed by the Trial Court. Being aggrieved with the same, the respondent/plaintiff through his power of attorney holder is before this Court in this regular second appeal.

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Sri Abhijit, learned counsel for the

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appellant/plaintiff reiterating the grounds urged in the appeal memorandum submitted that;

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a) That the trial court and the first appellate

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court committed grave error in not appreciating the material evidence produced by the appellant/plaintiff with regard to his right, title and interest over the suit schedule property.

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b) That the sale deed dated 01/05/1992 and

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the revenue documents produced would establish the title and possession of the appellant/plaintiff over the suit schedule property.

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c) That the trial court and the first appellate court failed to taking into consideration the fact that the respondents/defendants claiming to have purchased portion of property under different deeds of sale, they have not proved and established their title

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over the same. Thus, the same has led to miscarriage of justice.

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d) That the trial court and the first appellate

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court did not consider the commissioner report which was filed in a suit in OS.No.123/1994 at an undisputed point of time establishing the encroachment. That had the trial court and the first appellate court taken the same into consideration the conclusion would have been otherwise.

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e) Thus, he further submits that perverse appreciation of evidence by the trial court and the first appellate court has given rise to substantial question of law requiring consideration. Hence, sought for allowing the appeal.

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On the other hand, Sri Guruprasad B.R., learned counsel appearing for the

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respondents/defendants submits that;

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a) That the appellant/plaintiff having gone to the court seeking relief of declaration and injunction ought to have established his case on the strength of the evidence he relied upon.

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b) That even as admitted by PW.1 there were encroachment even prior to filing of the suit, the appellant/plaintiff except producing sale deed dated 01/05/1992 and subsequent document thereof has not produced any material evidence with regard to title, possession and interest of his vendor.

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c) That the said area is developed area and the respondents/defendants having purchased the property under different deeds of sale as narrated in the written statement and having been residing therein by constructing a house by paying tax, as such they cannot be called as trespassers.

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d) That as regards the commissioner report filed in OS.No.123/1994, the same has no evidentiary

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value as the respondents/defendants herein were not the parties to the said suit. That the said suit was dismissed for non-prosecution. The appellant/plaintiff therefore, cannot draw any benefit from the said commissioner report.

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e) That since the matter is only of a factual in nature no substantial question of law arise in this appeal for consideration. Hence, sought for dismissal of the appeal.

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Heard the learned counsel for the appellant/plaintiff and respondents/defendants.

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The appellant/plaintiff claims to have purchased the suit schedule property under a deed of sale dated 01/05/1992 originally measuring 10 guntas forming a part of Sy.No.71/9A1A. As admitted in his own pleading that an extent of 4 guntas was already encroached upon by third party and what remains is

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only 6 guntas. That even out of said 6 guntas respondents/defendants are trying to encroach the portion of property of appellant/plaintiff. It is the case that out of 6 guntas the appellant/plaintiff applied and obtained permission for change of land usage to the extent of 4 1/2 guntas of land. Thus, though the claim of the appellant/plaintiff to be the owner of 10 guntas of land, but by his own admission he has restricted his claim only to the extent of 6 guntas of land. The appellant/plaintiff has not entered the witness box. The matter has been conducted by his power of attorney holder, who appears to be sister-inlaw being the wife of his brother who is a Government employee. The said witness, in her deposition as extracted by the trial court and the first appellate court has pleaded and expressed her ignorance with regard to right, title and interest of the vendor of the appellant/plaintiff namely, Smt. Siddamma. Though it

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is claimed that the property belonged to Smt. Siddamma, no piece of evidence acceptable in law has been produced by the appellant/plaintiff. The said witness has also expressed ignorance with regard to title to an extent of land in Sy.No.71/9A1A and also with regard to the division made in respect of said property. The said witness has unequivocally admitted that even prior to filing of the suit there existed a house of the defendant No.1 and that defendant No.1 was residing therein. She has also admitted other portion of property has been in possession of third parties and RCC houses are in existence. As noticed by the first appellate court at paragraphs 23 to 30 of its judgment, the appellant/plaintiff has failed to prove the very existence of suit schedule property. Be that as it may, the fact of the matter is that the appellant/plaintiff seeking declaration of title has to establish by producing cogent legal evidence of his

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title over the property and also rightful entitlement of his vendor more particularly when the respondents/defendants have specifically denied the title of the appellant/plaintiff and have set up an independent title in themselves. The respondents/defendants who have claimed to be in possession of different portion of land purchased by them under different deeds of sale dated 01/03/1991, 15/12/1945 and 18/09/1968, it was imperative for the appellant/plaintiff to have established his title and the title of his vendor independently without having any reference to the claim of the respondents/defendants. The appellant/plaintiff cannot try gain anything from the defect or otherwise of the title of the respondents/defendants, this aspect of the matter has been rightly taken note of by the trial court and the first appellate court. Though the appellant/plaintiff has sought relief of declaration and injunction

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restraining the respondents/defendants from interference, the deposition of PW.1 would go to show that the respondents/defendants were already in possession of the portion of the suit schedule property and even this aspect of the matter has also been taken note of by the trial court and the first appellate court.

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On a holistic reading of the pleading and

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material evidence, no fault can be found with the reasoning and finding given by the trial court and the first appellate court. For the aforesaid reasons and analysis, 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.1558/2013 filed by the appellant/plaintiff is dismissed.

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ii) The judgment and decree dated 15/02/2011 passed in OS.No.162/2007 by the trial court and the judgment and decree dated 29/06/2013 passed in RA.No.136/2011 by the first appellate are confirmed.

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Sd/JUDGE

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Mkm

B.S. Gangadharaiah v. Smt. Shivamma

Case brief

What is this about?

What did the court decide?

B.S. Gangadharaiah v. Smt. Shivamma

Case brief

What is this about?

What did the court decide?

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