Allowed

Sri G Narayanappa v. Smt M Nagarathnamma

Karnataka HC9 Oct 2023RFA/1336/2019

Case brief

AI extract

What is this about?

On appeal against the dismissal of a suit for declaration and possession, the High Court of Karnataka held that the appellant proved ownership and possession of the land. The court set aside the lower court's judgment, declaring the appellant as the owner of 13 guntas and ordered the respondent to hand over possession by demolishing structures within two months.

What did the court decide?

The appeal was allowed; the trial court's judgment was set aside; the plaintiff was declared the owner in possession of 13 guntas of land; and the defendant was directed to hand over possession by dem

Sri G Narayanappa Vs Smt M Nagarathnamma — Property and Title | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 9^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR. JUSTICE K. NATARAJAN

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REGULAR FIRST APPEAL NO.1336 OF 2019

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BETWEEN:

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SRI. G. NARAYANAPPA AGED ABOUT 80 YEARS S/O LATE GOWDAPPA R/AT NO.1483, 'B' BLOCK R.M.S. LAYOUT SAHAKARNAGAR BENGALURU - 560 092

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... APPELLANT

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(BY MS. S. SUSHEELA, SENIOR ADVOCATE FOR SRI. RAMESH T.R., ADVOCATE)

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AND:

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SMT. M. NAGARATHNAMMA AGED ABOUT 65 YEARS W/O K.H. MUNIYAPPA R/AT NO.17, 6TH MAIN 6TH CROSS POSTAL COLONY SANJAYNAGAR BENGALURU - 560 094

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... RESPONDENT

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(BY SRI. M. SHIVAPRAKASH, ADVOCATE)

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THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 READ WITH ORDER XLI RULE 1 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 18.03.2019 PASSED IN O.S.NO.8170/2011 ON THE FILE OF THE XVIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE BENGALURU, DISMISSING THE SUIT FOR DECLARATION AND INJUNCTION.

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THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 14.9.2023 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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J U D G M E N T

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This appeal is filed by the appellant under Section 96 of CPC for setting aside the judgment dated 18.03.2019 passed by the XVIII Additional City Civil Judge, Bangalore, in O.S No.8170/2011, whereby the suit of the plaintiff for declaration, mandatory injunction and for possession, was dismissed.

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Heard the arguments of learned Senior counsel for the appellant and the learned counsel for respondent.

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The appellant was the plaintiff and the respondent was the defendant before the trial court. The rank of the parties is retained for the sake of convenience.

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The case of the plaintiff is that, he is the son of one Chowdappa, who was the absolute owner of the land in Sy. No.46/3 measuring 33 guntas, situated at Tindlu

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village, Yelahanka Hobil, Bangalore North Taluk (hereinafter referred to as 'suit schedule property'). Out of 33 guntas of land, 5 guntas is karab land. The name of plaintiff's father was mutated in revenue records. His father died in the year 1981, leaving behind the plaintiff as legal heir. Thereafter, the name of the plaintiff was mutated in the revenue records and he is in possession and enjoyment of the suit schedule property. Subsequently, he sold 0.15 guntas of the land to one V. Murali krishna on 25.04.1996. and the said Murali krishna got mutated the property in his name and sold 0-14 guntas of land to the defendant on 22.08.1996, who got mutated her name vide M.R. No.7/1997-98. Thereby, the plaintiff has become the owner of 13 guntas of land in Sy. No.46/3, his name was entered in RTC and the name of the plaintiff was showing in the remaining portion of Sy.No.46/3. It is the further case of the plaintiff that the defendant is politically influenced person, trying to encroach the remaining property of the plaintiff. When the

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plaintiff met the defendant questioning the same, the defendant has given evasive reply, and refused to remove the encroachment and deliver the vacant possession. Hence, the plaintiff filed the aforesaid suit.

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In pursuance of the summons, the defendant appeared and filed written statement contending that the plaintiff is not in possession of any part of the land in Sy.No.46/3 of Thindlu village. Since 20 years, she is in possession of the suit schedule property running gas agency by constructing sheds. She has further contended that some portion of the land has been utilized for formation of road. After alienation of the suit schedule property by the plaintiff, knowing fully that the defendant is in possession of the suit schedule property, he has filed the suit knocking property by suppressing the material fact. It is further contended that the suit is barred by limitation and not maintainable for non-joinder of parties. Hence, prayed for dismissing the suit.

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Based upon the pleadings, the trial Court framed five issues, which are as under:

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"1. Whether the plaintiff proves that he is the absolute owner of the suit schedule property?

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2. Whether the plaintiff proves that the defendant has encroached the suit schedule property and put a shed over the same?

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3. Whether the suit is barred by limitation? 4. Whether the plaintiff is entitled for a decree of declaration, possession and mandatory injunction as prayed?

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5. What order or decree?"

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On behalf of the plaintiff, he himself examined as P.W.1 and two witnesses were examined as P.Ws.2 and 3

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and got marked 33 documents. On behalf of the defendant, the Special Power of Attorney holder of defendant was examined as D.W.1 and one more witness as D.W.2 and got marked 10 documents. After hearing the arguments, the trial Court given finding by answering

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issue Nos.1 to 4 in the negative and dismissed the suit. Hence, the plaintiff is before this Court.

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Learned Senior Counsel for the appellant-plaintiff has contended that the plaintiff was the owner of 33 guntas of the land and it was admitted by the defendant. Out of which, 5 guntas has gone to road as karab land and the plaintiff was in possession in the remaining 28 guntas of the land. The plaintiff has sold 15 guntas of land to the defendant's vendor Murali Krishna and retained 13 guntas of land on the northern side. The said Murali Krishna sold 14 guntas of the land to the defendant. Once the defendant's vendor and the defendant admit ownership of plaintiff if a portion is sold to th defendant' vendor, the remaining portion was retained and continued to be in possession but the defendant put up the compound wall, on the remaining portion of land belong to plaintiff. Therefore, it is necessary for the plaintiff to seek declaration and possession over the suit schedule property. The learned Senior Counsel further contended

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that there was no pleading by the defendant but there was evidence adduced for purchasing some sites by the defendant and that cannot be considered. The evidence without pleadings, is not admissible. Therefore, Exs.D.2 to D.5 cannot be considered. The learned Senior Counsel further contended that the contention of the defendant that she in possession of the property for 20 years, cannot be acceptable, which she purchased in the year 1996 and the suit was filed in the year 2011, the question of 20 years regarding possession cannot be acceptable. When the defendant has not disputed the ownership of the plaintiff in Sy.No.46/3 and she claims right through the plaintiff, she cannot deny the ownership. The RTC of the plaintiff reveals that the plaintiff is in possession of the suit schedule property. Though the defendant claims that the property is not an agricultural land, but no khatha is produced to prove the same. Therefore, the trial Court has committed an error in not properly appreciating the

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evidence and in dismissing the suit. Hence, prayed for allowing the appeal.

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Per contra, the learned counsel for the respondent has supported the judgment of the trial Court and contended that the property was fallen to the jurisdiction of BBMP from the year 2002 and there is no agricultural land. Such being the case, the question of considering the suit schedule property as an agricultural land is, not correct. The valuation suit filed by the plaintiff is not correct. Even otherwise, the plaintiff has not established the right over the suit schedule property. He cannot take the weakness of the defendant. The learned counsel further contended that the plaintiff has failed to prove the case in respect of possession over the suit schedule property. When the defendant has specifically denied the case of the plaintiff, the question of granting the decree does not arise, and the suit is barred by law. The plaintiff has also admitted that he does not know as to how the building is existing and there is no identification of

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the suit schedule property. If at all, the plaintiff has retained any portion, there must be a mention in the schedule of the sale deed, but nothing has been mentioned. The learned counsel further contended that once the property has come under the BBMP limit as Byatarayanapura CMC was amalgamated with BBMP, the question of issuing RTC does not arise. The RTCs are not the lawful documents and they have no evidentiary value. If the Surveyor was appointed, he could have certainly assisted the Court, but no such attempts were made. Exs.D.2 to D.5 are the sale deeds to show that the defendant has already purchased the sites. There is no error or perversity in the judgment passed by the trial Court. Therefore, prayed for dismissing the appeal.

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Having heard the arguments of learned counsel

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for the parties, perused the records.

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The points that arise for consideration in this appeal

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are:

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(i) Whether the plaintiff proves that he is the absolute owner of the suit schedule property and the defendant is trying to interfere over the schedule property ?

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(ii) Whether the plaintiff is entitled for the decree of declaration, possession and mandatory injunction ?

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(iii) Whether the judgment of trial Court calls for interference ?

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On perusal of the records and the evidence of P.W.1, who is the plaintiff, he has reiterated the averments made in the plaint. In the examination-in-chief, the plaintiff has categorically stated that the land in Sy. No.46/3 was measuring 33 guntas; and 5 guntas was karab land, and the remaining 28 guntas of land was in his possession, out of which, he has sold 15 guntas of land to one Murali Krishna on 25.04.1996 and retained 13 guntas of land. The said Murali Krishna, in turn, sold 14 guntas of land to the defendant on 22.08.1996. The case of the defendant is that, he has admitted the ownership of the plaintiff in Sy.No.46/3 and purchasing of 15 guntas of the

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same land by one Murali Krishna, who is the vendor of the defendant. Subsequently, the defendant purchased 14 guntas of land from Murali Krishna, under the sale deed dated 22.08.1996 as per Ex.D7. The vendor of the defendant had purchased 15 guntas of land from the plaintiff on 25.04.1996, which is marked at Ex.P33. D.W.1 the GPA holder of the defendant has admitted in the cross examination regarding selling of the 15 guntas by the plaintiff to the vendors of the defendant. It is an admitted fact in the evidence of PW1 in the pleading, as well as the recitals from the Ex.P33 and D7, which clearly reveals, the plaintiff was the owner of the land in Sy.No.46/3 measuring 28 guntas. If the defendant denies the ownership of the plaintiff over the land in Sy.No.46/3, the defendant will not derive any right and title under Ex.D33, the sale deed executed by the vendor of the defendant Murali Krishna, if the Murali Krishna not derived any title from the plaintiff under Ex.D7, the question of claiming the ownership of title by the defendant over Sy.No.46/3 for 14

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guntas does not arise. The Ex.P33, is the sale deed executed by the plaintiff in favour of Murali Krishna, the vendor of the defendant which is also marked as Ex.D6. On perusal of the Ex.P33, the sale deed of the vendor of the defendant are marked at Ex.D6, sale deed of vendor of

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the defendant. The recitals at para 2, it is categorically mentioned that Narayanappa (the plaintiff), the vendor who is absolute sole owner, who is in peaceful possession and enjoyment of the dry land in Sy.No.46/3 'measuring 0-28 guntas' and out of which, 0.15 guntas sold to the Murali Krishna for Rs.1,32,000/-. Likewise, the sale deed of the defendant at Ex.D7, wherein the defendant has purchased 14 guntas of land from Murali Krishna. In this sale deed a reference is available that the vendor Murali Krishna purchased the property in Sy.No.46/3 from Narayanappa under the sale deed 25.04.1996. The boundaries in both the documents at Exs.D6 and D7 on the northern side, it is mentioned portion of land in Sy.No.46/3. This boundary and existence of portion of

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land in Sy.No.46/3 clearly corroborates with the evidence of plaintiff in his evidence as well as pleadings and sale deed executed by him in favour of the Murali Krishna, the vendor of the defendant to show that he has sold only 15 guntas to Murali Krishna out of 28 guntas and out of the said 15 guntas, 14 guntas were sold by the Murali Krishna to the defendant under Ex.P1. Therefore, the contention of the defendant that there is no portion of the land retained by the plaintiff in Sy.No.46/3, cannot be acceptable.

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The contention of the defendant, in his evidence that prior to the purchasing of 14 guntas from Murali Krishna, the defendant has purchased 3 sites from GPA holders of one Ashwathappa through GPA holder B.Venkatesh vide site No.3 khata No.1289/433/3 measuring 25 x 120 ft under sale deed 6.3.1995 marked as Ex.P2 and another portion of the property purchased from said Venkatesh who is a GPA holder of Ashwathappa measuring 25 x 120 ft which is marked at Ex.D3. Another

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sale deed dated 8.3.1995 purchased by defendant from one Chennappa measuring 120x25 ft, marked at Ex.D4, vide khatha No.977/1001/1 and sale deed dated 8.3.1995 purchased the site bearing No.978/1002/2 measuring 120x25 ft which is marked at Ex.D5, all reveals some revenue sites have been purchased by defendant under Ex.D2 to D5. On perusal of the recital of the sale deeds, none of the sale deeds refers the source of the land from which survey number, the sites were formed or revenue sites were formed and there is no reference available in the Ex.D2 to 5, to show these sites were formed out of the land in Sy.No.46/3. Though the defendant taken the contention that land in Sy.No.46/3 belongs to the plaintiff's father and his brothers, there was partition and the plaintiff father got only 15 guntas of land and the same was sold and there is no land retained by the accused were all not proved by the defendant, except his oral testimony without supporting any documents like partition deed between father of the plaintiff and uncle of the plaintiff,

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there is no revenue documents produced to show there was partition among the family members of the father. Even in the sale deed of the vendor of the defendant, there is no reference available. It is a clear case of the plaintiff that he is the owner and in possession of the land in Sy.No.46/3 measuring 28 guntas, out of which a portion i.e., 15 guntas was sold to the vendors of the defendant and the said portion was purchased by the defendant.

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Though the defendant produced Ex.D2 to 5 and given evidence that she has purchased the property out of the same land from the family members of the plaintiff's father, but there is no pleading in the written statement, if at all she has purchased the said property prior to purchasing 14 guntas of land from her vendor, she could have mentioned in the written statement that she has purchased 4 sites out of the Sy.No.46/3. But absolutely there is no documents and also boundaries to those lands and even there is no revenue sketch to show the said sites were formed out of the portion of land Sy.No.46/3. It is

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well settled that evidence without pleading is not admissible.

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Even on perusal of evidence of PW1 in the cross examination, the defendant counsel suggested and got admitted that out of 28 guntas of land, 15 guntas has been sold to Murali Krishna and it is also suggested that Narayanappa sold 13 guntas of land in favour of the defendant. The defendant also tried to claim in the cross examination that the sites sold in the Ex.D2 to 5 are formed out of Sy.No.46/3, but the same was denied by the plaintiff. When the defendant failed to show 4 sites purchased through GPA holder of Ashwathappa and Chennappa which was formed out of Sy.No.46/3 of Thindlu village, the question of claiming right over the land in Sy.No.46/3 other than the 14 guntas of land purchased from Murali Krishna, the vendor of the defendant does not arises. Therefore, the sale deed with respect to the site and khatha extracts were all not useful to the defendants case. On the other hand, from the evidence of the plaintiff

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PW1 and the documents produced as per Ex.P1 to P33 and even considering the evidence of DW1 and the documents at Ex.D6 and D7, the defendant has purchased only 14 guntas of land in Sy.No.46/3 from Murali Krishna and the said Murali Krishna, vendor of the defendant had purchased only 15 guntas of land from plaintiff under the sale deed dated 23.4.1996 and remaining land was not sold by the plaintiff to any other person out of the 28 guntas. Thereby, the plaintiff retained the said land in his possession and he has continued to be in the possession and filed the RTCs and other documents to prove the same. The plaintiff also got examined as PW2, Suresh who is son of the plaintiff, also deposed that grandfather of the plaintiff had 33 guntas of land in Sy.No.46/3 and Gowdappa had only one son who is the plaintiff and the entire land was succeeded by the plaintiff. He also deposed only 15 guntas of land were sold to Murali Krishna and remaining land 13 guntas were retained. He also speaks about the interference of the defendant. During the

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cross examination, except the denial, nothing has been brought on evidence to show the plaintiff not retained 13 guntas of land and sold entire 28 guntas of land.

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PW3-Manjunatha, also deposed the father of the plaintiff had 33 guntas of land, he is also resident of same village having property at Kodigehalli. He also speaks about the encroachment of the defendant about 13 guntas of land. Evidence of these two witnesses supports the case of the plaintiff. Though, the defendant got examined as DW2 one Venkatesh, he has stated one B.Venkatesh executed sale deed in favour of the defendant and sold two sites and one Chennappa and Ashwathappa sold two sites to the defendant and he has stated the portion of land in Sy.No.46/3 was owned by one Marappa, who is the cousin of the plaintiff and there was oral partition and the plaintiff got half of the share and remaining portion was fallen to the share of Marappa. The same was denied by the plaintiff in the cross examination and he also admitted in the cross examination, that he do not know the name of the father

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of Marappa and details of the properties which took place in the partition. On perusal of the evidence of DW2, the defendant is trying to say, there was family partition between plaintiff's father and his uncle, only half portion of the property had fallen to the portion of plaintiff father. But no such documents produced to show, there was partition and only half share was fallen to the share of plaintiff's father and remaining half share in Sy.No.46/3 fallen to one Marappa, the cousin of the plaintiff's father. There are no documents like RTCs to show after the partition, the revenue records mutated in the name of uncle of the plaintiff. If that is believable, the defendant could have examined any of the vendors under Ex.D2 to 5 before the court, to show the said sites were formed in Sy.No.46/3. Therefore, the oral contention of DW2 cannot be acceptable and it appears he wants to support the defendant's case. I have already held there is no reference in Ex.D2 to 5 about the forming of these sites from Sy.No.46/3 and no revenue records to show or mutation

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entries to show only half portion was fallen to the share of plaintiff's father. Therefore, the evidence of DW1 and 2 is not acceptable. Hence, I am of the view the plaintiff was successful in proving that he is the owner and is in enjoyment of the suit schedule property. The defendant trying to interfere over the same by purchasing only 14 guntas, out of 28 guntas and putting up compound by including vacant land of the plaintiff, is nothing but interference over the suit schedule property and illegal possession. Hence, answered the point no.1 in favour of the plaintiff appellant.

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As regards to the limitation for the purpose of seeking the declaration and possession 12 years Limitation prescribed under Article 65 of the Limitation Act. Therefore suit is not barred by limitation. The Trial Court without proper appreciation of evidence, wrongly came to the conclusion that the plaintiff is having only half portion of Sy.No.46/3 and sold to the defendant's vendor and cousins of the plaintiff's have sold the remaining portions, cannot

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be acceptable. The Trial Court committed error in not proper appreciation of the oral and documentary evidence of plaintiff on record and wrongly considered the site purchased by the defendants out of the Sy.No.46/3 of Thindlu village, which is not correct.

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Though the learned counsel for the respondent has contended there is no agricultural land and the Thindlu village came under the BBMP in the year 2002 and no Khatha produced etc., but the fact remains defendant also not produced any Khatha extracts for purchasing the 14 guntas of the land from the Murali Krishna, the purchaser of the property from the plaintiff. Therefore, the contention of the defendant counsel cannot be acceptable. For the reasons stated above, the judgment of the Trial Court is liable to be set aside and plaintiff is entitled for the relief of declaration, possession and mandatory injunction, as prayed in the suit.

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Accordingly, the appeal is allowed .

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The judgment of the Trial Court dismissing the suit is hereby set aside. The suit of the plaintiff is hereby decreed.

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It is declared that plaintiff is owner in possession of the schedule property measuring 13 guntas of land of Sy.No.46/3 of Thindlu village.

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The defendant is in possession of the suit schedule property, therefore, it is directed to the defendant to handover the possession of the schedule property to the plaintiff by demolishing the compound constructed therein within two months.

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No order as to the costs.

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Draw Decree accordingly.

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Send copy of the judgment and TCR to the court

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concerned.

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Sd/JUDGE

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AKV

Sri G Narayanappa v. Smt M Nagarathnamma

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What is this about?

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Sri G Narayanappa v. Smt M Nagarathnamma

Case brief

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