Dismissed

Mariyappa Dead by Lrs v. Sri Dasappa

Karnataka HC22 Feb 2022RSA/89/2011

Case brief

AI extract

What is this about?

This regular second appeal concerns a property dispute between plaintiffs claiming title via a 1976 sale deed and defendants claiming title via an earlier 1957 sale deed. The High Court dismissed the appeals, holding that the plaintiffs established their title through the registered deed and revenue records, while the defendants failed to prove a discrepancy or seek rectification.

What did the court decide?

Regular Second Appeals No.89/2011 and 90/2011 are dismissed, and judgments/decrees of lower courts confirming plaintiffs' title are upheld.

Mariyappa Dead by Lrs Vs Sri Dasappa — 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 22^ND 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.89 OF 2011 C/W REGULAR SECOND APPEAL NO.90 OF 2011

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IN R.S.A.NO.89/2011

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BETWEEN:

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MARIYAPPA DEAD BY LRS.

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SMT. RANGAMMA, D/O MARIYAPPA, W/O VENKATARAMU, AGED ABOUT 43 YEARS, R/O “SRINIVASA NILAYA”, OPP. TO GOVERNMENT SCHOOL, HESARAGHATTA, BANGALORE – 560 068.

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SMT.RAJAMMA @ KEMPA RANAMMA, D/O MARIYAPPA, W/O KARISHNAPPA, AGED ABOUT 33 YEARS, R/O B.H.PALYA, DIBBUR POST, TUMKUR – 563 138.

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(BY SMT. NALINA, ADVOCATE)

... APPELLANTS

AND:

SRI.DASAPPA, S/O HANUMANTHAIAH, AGED ABOUT 66 YEARS, R/O H.B.PALYA, HAMLET OF DIBBUR, KASABA HOBLI, TUMKUR – 563 138.

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SRI.RAMAKRISHNAIAH, S/O HANUMANTHAIAH, AGED ABOUT 61 YEARS, R/O H.B.PALYA, HAMLET OF DIBBUR, KASABA HOBLI, TUMKUR – 563 138.

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SRI.GANGANNA, S/O PAPAIAH, AGED ABOUT 71 YEARS, R/O H.B.PALYA, HAMLET OF DIBBUR, KASABA HOBLI, TUMKUR – 563 138.

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SRI.PUTTAIAH, S/O HANUMANTHAIAH, AGED ABOUT 63 YEARS, R/O H.B.PALYA, HAMLET OF DIBBUR, KASABA HOBLI, TUMKUR – 563 138.

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P.RAMASANJEEVAIAH, S/O LATE PUTTAIAH, AGED ABOUT 61 YEARS, R/AT “PAVANAGANGA”, VI CROSS, ASHOK NAGAR,

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OPP. TO GOVERNMENT COLLEGE, TUMKUR – 563 138.

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…RESPONDENTS

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(BY SRI.RAVI H.K., ADVOCATE FOR SRI.H.KANTHARAJ, ADVOCATE FOR R1 AND R2; SRI.B.C.AVINASH, ADVOCATE FOR SRI.V.RAVIPRAKASH, ADVOCATE FOR R5; R3 AND R4 SERVED)

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THIS APPEAL IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE AGAINST THE JUDGMENT & DECREE DATED 20.09.2010 PASSED IN R.A.NO.287/2009 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT – II, TUMKUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 23.12.2006 PASSED IN O.S.NO.99/1997 ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN) TUMKUR.

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IN R.S.A.NO.90/2011

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BETWEEN:

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P.RAMASANJEEVAIAH, S/O LATE PUTTAIAH, AGED ABOUT 62 YEARS, R/O “PAVANAGANGA”, VI CROSS, ASHOK NAGAR, OPP: TO GOVERNMENT COLLEGE, TUMKUR – 572 101.

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... APPELLANT

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(BY SRI.B.C.AVINASH, ADVOCATE FOR SRI.V.RAVIPRAKASH, ADVOCATE)

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AND:

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SRI.DASAPPA,

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S/O HANUMANTHAIAH,

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AGED ABOUT 67 YEARS, R/O H.B.PALYA, HAMLET OF DIBBUR, KASABA HOBLI, TUMKUR – 563 138.

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SRI.RAMAKRISHNAIAH, S/O HANUMANTHAIAH, AGED ABOUT 62 YEARS, R/O H.B.PALYA, HAMLET OF DIBBUR, KASABA HOBLI, TUMKUR – 563 138.

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MARIYAPPA DEAD BY LRS.

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(a) SMT. RANGAMMA, D/O MARIYAPPA, W/O VENKATARAMU, AGED ABOUT 44 YEARS, R/O “SRINIVASA NILAYA”, OPP. TO GOVERNMENT SCHOOL, HESARAGHATTA, BANGALORE – 560 068.

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(b) SMT.RAJAMMA @ KEMPA RANAMMA, D/O MARIYAPPA, W/O KARISHNAPPA, AGED ABOUT 34 YEARS, R/O H.B.PALYA, HAMLET OF DIBBUR, KASABA HOBLI, TUMKUR – 572 101.

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SRI.GANGANNA, S/O PAPAIAH, AGED ABOUT 77 YEARS, R/O H.B.PALYA, HAMLET OF DIBBUR, KASABA HOBLI,

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TUMKUR – 572 101.

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SRI.PUTTAIAH, S/O HANUMANTHAIAH, AGED ABOUT 52 YEARS, R/O H.B.PALYA, HAMLET OF DIBBUR, KASABA HOBLI, TUMKUR – 572 101.

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…RESPONDENTS

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(BY SRI.RAVI H.K., ADVOCATE FOR SRI.H.KANTHARAJ, ADVOCATE FOR R1 AND R2; R4 SERVED; R5 SERVED)

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THIS APPEAL IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE AGAINST THE JUDGMENT & DECREE DATED 20.09.2010 PASSED IN R.A.NO.473/2009 (OLD NO.11/2007) ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT – II, TUMKUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 23.12.2006 PASSED IN O.S.NO.99/1997 ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN) TUMKUR.

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

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JUDGMENT

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Regular Second Appeal No.89/2011 is filed by

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the legal representatives of defendant No.1 while

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Regular Second Appeal No.90/2011 is filed by defendant Nos.2, 3 and 4 aggrieved by the common

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judgment and decree dated 20/09/2010 passed in R.A.No.287/2009 and R.A.No.473/2009 respectively

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on the file of the FTC-II, Tumkur (hereinafter referred to as ‘the first appellate court’), dismissing the appeals and confirming the judgment and decree dated 23/10/2006 passed in OS.No.99/1997 on the file of the Principal Civil Judge (Junior Division), Tumkur (hereinafter referred to as ‘the trial court).

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

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Dasappa and Ramakrishnaiah, both sons

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of Hanumanthaiah are the plaintiffs before the trial court. They filed the above suit in OS.No.99/1997 before the trial court for declaration to declare them as the absolute owners in possession and enjoyment of the land bearing Sy.No.39/6 measuring 24 guntas situated at Dibbur, Kasaba

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Hobli, Tumkur Taluk, including a Farm House and 20 coconut trees (hereinafter referred to as ‘suit schedule property’) and for consequential relief of permanent injunction on the premise that the plaintiffs purchased the suit schedule property in terms of a deed of sale dated 22/11/1976 from one Smt. Mayamma, the wife of late D.Shamanna. That ever since the date of purchase the plaintiffs have been in possession and enjoyment of the suit schedule property. That the khatha in respect of

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the suit schedule property stood in the name of plaintiff No.1. That the defendants without having any right over the suit schedule property tried to interfere with the peaceful possession and enjoyment of the plaintiffs which constrained the plaintiffs to file the above suit.

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The defendants filed written statement

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disputing the boundaries of the suit schedule property. It is contended that the boundaries given

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in the suit schedule property do not pertain to land bearing Sy.No.39/6, but it pertains to land bearing Sy.No.39/7. It is further contended that the land bearing Survey No.39 measuring 9 acres 27 guntas had been divided into 9 phodes, i.e., 39/1, 2, 3, 4, 5A, 5B, 5C, 6 and 7. That at the time of purchase of the above property by the plaintiffs and defendants, the survey numbers were incorrectly mentioned. However, measurements and boundaries are correctly given in their respective deeds of sale. That in the deed of sale dated 20/05/1957 registered in favour of defendant No.2, Survey number has been incorrectly mentioned as 39/4 instead of 39/6. However, the measurement and boundaries are correctly mentioned. That in the deed of sale dated 22/11/1976, survey number is mentioned as 39/6 instead of 39/7. That the defendants noticed the discrepancies in the survey numbers and filed application before the court of

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Tahsildar in Case No.RRT (Dis) 76/96-97. That the Taluka Surveyor inspected the spot, measured the boundaries of the respective portions in possession and enjoyment of the plaintiffs and defendants and submitted a report as to the actual physical possession of the portions of properties belonging to plaintiffs and the defendants. The defendants have further given details of their respective portions of land. It is further contended that the plaintiffs taking undue advantage of the wrong mentioning of phodi numbers entered in their deed of sale with an ulterior motive of knocking off the properties belonging to the defendants have filed the suit. Hence, sought for dismissal of the suit.

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The Trial Court based on the pleadings

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framed the following issues:

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(1) Whether the plaintiffs prove that they are the absolute owners in possession and enjoyment of the

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suit schedule property by virtue of the sale deed dated 22.11.1976?

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(2) Whether the plaintiffs further prove that the defendants have attempted to interfere with the plaintiff’s peaceful possession and enjoyment of the suit schedule property with intention to oust the plaintiff from the same?

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(3) Whether the defendants prove that the plaintiffs have furnished false particulars about the suit schedule property?

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(4) Whether the defendants prove that the plaintiffs have undervalued the property and the suit is not maintainable?

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(5) What order or decree the parties are entitled to?

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The plaintiff No.2 examined himself as

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PW.1, besides examining three witnesses as PWs.2 to 4 and exhibited 29 documents as Ex.P1 to

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Ex.P29. On the other hand, defendant No.4 examined himself as DW.1 and exhibited 31 documents as Exs.D1 to D31. Defendant No.3 has been examined as DW.2 and exhibited 4 documents as Exs.D32 to 36. Defendant No.1 has been examined as DW.3 and exhibited documents at Exs.D37 to D39 and also examined another witness and Taluka Surveyor as DWs.4 and 5 respectively and exhibited 5 documents as per Exs.D.40 to D44.

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On appreciation of evidence, the Trial Court, by its judgment and decree dated 23/12/2006 decreed the suit of the plaintiffs. Aggrieved by the same, the legal representatives of defendant No.1 filed regular appeal in RA.No.287/2009 and defendant Nos.2, 3 and 4 filed regular appeal in RA.No.473/2009 respectively before the first appellate court.

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8. Considering the grounds urged in the

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appeal memo, the First Appellate Court framed the following common points for its consideration.

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(1) Whether the appellants in RA.287/2009 & 473/2009 prove that the trial court has erred in dismissing the suit in O.S.No.99/97 on the file of the Prl. Civil Judge (Jr.Dn.) Tumkur, on 23-12-2006 is liable to be set aside?

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(2) Whether the appellants in RA.287/2009 and 473/2009 prove that the trial court has erred in dismissing the suit in O.S.No.99/97 on the file of the Prl.Civil Judge (Jr.Dn.) Tumkur on 23-12-206 is erroneous, illegal, perverse and against the facts on record, thereby the interference of this court is required?

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(3) What order?

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On re-appreciation of oral and

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documentary evidence, the first appellate court, by its judgment and decree dated 20/09/2010 had dismissed the said appeals confirming the judgment and decree passed by the Trial Court. Being aggrieved with the same, the legal representatives

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of defendant No.1 and defendant Nos.2 to 4 are before this Court by way of aforesaid regular second appeals.

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Learned counsel for the appellants reiterating the grounds urged in the appeal memorandum submitted;

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(i) That the trial court and the first appellate court grossly erred in decreeing the suit without appreciating the case of the defendants.

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(ii) That the plaintiffs are in actual possession and enjoyment of land bearing Sy.No.39/7 and not in Sy.No.39/6. Though in the deed of sale dated 22/11/1976 Survey No.39/6 is mentioned, the land actually conveyed was Sy.No.39/7. Thus, the defendants have been in possession of land in

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Sy.No.39/6 though in their deed of sale dated 20/05/1957 survey number is incorrectly mentioned as 39/4 instead of 39/6.

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(iii) That the plaintiffs having

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approached the court ought to have proved what was conveyed to them under the deed of sale dated 22/11/1976

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was land bearing Sy.No.39/6 and not Sy.No.39/7.

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(iv) That the courts below failed to taking into consideration the survey sketch and the commissioner report which reveal that the plaintiffs failed to establish that they have been in possession of land bearing Sy.No.39/6. That since the sale deed dated 20/05/1957 under which the defendants

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are claiming right is prior in time, the courts below ought to have preferred the said sale deed to the sale deed dated 22/11/1976 under which the plaintiffs claimed their right.

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(v) That the non-appreciation of

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material evidence and the statements of witnesses produced by the defendants by the courts below has resulted in miscarriage of justice giving rise to substantial question of law. Hence, sought for allowing of the appeals.

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Learned counsel appearing for the plaintiffs justifying the judgment and decree passed in the aforesaid regular appeals submits that the deed of sale dated 22/11/1976 under which the plaintiffs claimed their right and in possession has not been disputed though the defendants claimed

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their right under deed of sale dated 20/05/1957 and claimed to be in the knowledge of wrong mentioning of the survey numbers have taken no action except filing an application before the Tahsildar. The deed of sale dated 22/11/1976 being a registered document not having been challenged, no substantial question of law arises in these appeals for consideration. Hence, sought for dismissal of the appeals.

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Heard the learned counsel for the

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parties. Perused the records.

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It is not in dispute that the plaintiffs purchased the suit schedule property in terms of deed of sale dated 22/11/1976. The documents produced by the plaintiffs, namely, the revenue records correspond with the survey number mentioned in the deed of sale. It is the case of the defendants that in the deeds of sale under which plaintiffs and defendants purchased the land, the

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survey numbers have been incorrectly mentioned. That in the deed of sale dated 22/11/1976 relied

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upon by the plaintiffs, Survey No.39/6 is mentioned instead of Sy.No.39/7 and in the deed of sale dated 20/05/1957 under which defendant No.2 is claiming, survey number of the land is incorrectly shown as 39/4 instead of 39/6.

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Even according to the defendants, when

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they are aware of incorrect mentioning of the survey numbers of lands in the aforesaid deeds of sale, they have neither taken any steps to rectify the purported defect in mentioning the survey number nor have they given any justification for their inaction all these years. Merely stating that the suit schedule property mentioned in the sale deed dated 22/11/1976 under which the plaintiffs are claiming their title and possession is different from the property which is actual subject matter of the sale deed would not be sufficient to disentitle

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the plaintiffs from the relief of declaration and possession. Admittedly, the deed of sale dated 22/11/1976 under which the plaintiffs purchased the property is still valid and subsisting. The revenue records produced by the plaintiffs and the description of the property entered therein corresponds with the sale deed dated 22/11/1976. Thus, as rightly taken note of by the trial court and the first appellate court, the plaintiffs have established their right, title and interest over the suit schedule property by producing registered deed of sale and revenue records regarding their physical possession and enjoyment thereof.

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On the contrary, defendants though claimed the properties subject matter of the said sale deed is bearing Survey No.39/7 and not 39/6 have not produced any acceptable cogent evidence in this regard and have admittedly not taken any steps in accordance with law seeking rectification of

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the same. The trial court and the first appellate court, in the absence of any material evidence produced by the defendants in justification of their case, have rightly decreed the suit of the plaintiffs.

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In the circumstances, the reasoning and conclusion arrived at by the courts below cannot be found fault with and as such, no substantial question of law would arise in these matters requiring consideration. In the result, the following:

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ORDER

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i) Regular Second Appeals No.89/2011 and 90/2011 filed by the legal representatives of the defendant No.1 and defendant Nos.2 to 4 respectively are dismissed.

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ii) The judgment and decree dated 23/12/2006 passed in OS.No.99/1997 by the trial court and the judgment and decree dated 20/09/2010 passed in RA.Nos.287/2009 and 473/2009 are confirmed.

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Sd/JUDGE

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MKM

Mariyappa Dead by Lrs v. Sri Dasappa

Case brief

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Mariyappa Dead by Lrs v. Sri Dasappa

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