Allowed

Jayaramu v. Krishnappa

Karnataka HC13 Dec 2023RSA/1467/2012

Case brief

AI extract

What is this about?

In this regular second appeal regarding a suit for declaration of title and permanent injunction, the High Court of Karnataka allowed the appeal, setting aside the First Appellate Court’s judgment. The Court held that a registered partition deed established the father’s title to the property, which passed to the appellant, rendering defendants’ sale deed illegal and restoring the trial Court decre

What did the court decide?

The appeal was allowed; the First Appellate Court’s judgment setting aside the trial decree was reversed; the trial Court’s decree is restored; no costs.

Jayaramu Vs Krishnappa — Partition | Karnataka HC (2023)

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1 - NC: 2023:KHC:45508 RSA No. 1467 of 2012

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE ASHOK S.KINAGI

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REGULAR SECOND APPEAL NO. 1467 OF 2012 (DEC/INJ)

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BETWEEN:

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JAYARAMU S/O LATE RAMEGOWDA AGED ABOUT 56 YEARS R/O LOKANAYAKANAGAR HEBBAL MAIN ROAD, MYSORE – 570 016

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…APPELLANT

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(BY SMT. SAVITHA T.H., ADVOCATE FOR SRI. LOKESH B.N., ADVOCATE)

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AND:

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KRISHNAPPA S/O LATE KARIYAPPA AGED ABOUT 79 YEARS

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Digitally signed by R DEEPA Location: High Court of Karnataka

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SOMANNA S/O LATE KARIYAPPA AGED ABOUT 76 YEARS

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MARIGOWDA S/O LATE KARIYAPPA AGED ABOUT 70 YEARS

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ANKEGOWDA S/O LATE KARIYAPPA AGED ABOUT 66 YEARS

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RESPONDENT Nos.1 TO 4 ARE SONS OF LATE KARIYAPPA

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2 - NC: 2023:KHC:45508 RSA No. 1467 of 2012

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ALL ARE R/A NO.2300, 2^ND CROSS VINAYAKANAGARA, DEVARAJA MOHALLA, MYSORE CITY – 570 001

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VIJAYA

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W/O LINGEGOWDA AGED ABOUT 43 YEARS R/A NO.23, 1^ST CROSS VINAYAKANAGARA, DEVARAJA MOHALLA, MYSORE CITY - 570001

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…RESPONDENTS

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(BY SRI. V R BALARAJ, ADVOCATE FOR R5 R1, R2, R3 & R4 ARE SERVED)

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THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 21.2.2012 PASSED IN R.A.NO.785/2009 ON THE FILE OF PRESIDING OFFICER, FAST TRACK COURT-I, MYSORE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DTD 16.7.2007 PASSED IN OS.NO.212/2006 ON THE FILE OF V ADDITIONAL FIRST CIVIL JUDGE (JR.DN.), MYSORE.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This second appeal is filed by the appellant challenging the judgment and decree dated 21.02.2012, in R.A.No.785/2009 passed by the Fast Track Court-I, Mysore.

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For the sake of convenience, parties are referred

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to as per their ranking before the trial Court. The

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NC: 2023:KHC:45508 RSA No. 1467 of 2012

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appellant is the plaintiff and respondents are the defendants.

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The brief facts leading rise to filing of this appeal are as under:

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Plaintiff filed a suit for declaration of title and permanent injunction. It is the case of the plaintiff that originally the entire property bearing Door No.2300-D3, 2^nd Cross, Vinayaka Nagar Badavane, Mysore, was standing in the name of one late Kariyappa under the partition deed which was effected on 06.04.1958. In the said partition, the said property was allotted to the share of one Ramegowda i.e., the father of plaintiff. After his demise, khata of the suit schedule property was changed in the name of the plaintiff and new sub number was assigned as 2300/1D and 21300/D3/1D by Mysore City Corporation and it issued form No.9 to the extent of the property bearing No.70 X 45 ft consisting of country tiled building measuring 17.65 sq.ft. The suit property is a portion of the said property, standing in the name of the

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plaintiff and other family members do not have any right over the suit schedule property. Defendant Nos.1 to 4 are none other than the paternal uncles of the plaintiff. They having colluded with the defendant No.5, got the sale deed pertaining to the suit schedule property which had fallen to the share of the father of plaintiff in favour of defendant No.5. Thus, defendant No.5 is not bonafide purchaser. Further, it is contended that defendant Nos.1 to 4 have no right, title or interest to execute the registered sale deed in favour of defendant No.5 with respect of suit property. On the strength of said registered sale deed, defendant No.5 is trying to put up the construction over the suit schedule property. Hence, cause of action arose for the plaintiff to file the suit.

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Defendant Nos.1 to 4 filed written statement denying the averments made in the plaint. Further contending that the plaintiff is not the son of Ramegowda. It is the case of the defendant Nos.1 to 4 that the plaintiff is the son of Ramaiah @ Ramegowda and

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the father of defendant Nos.1 to 4 is Karigowda @ Kariyappa. They are the brothers and the plaintiff is the 3^rd son of 2^nd wife of Ramaiah @ Ramegowda who is the paternal senior uncle of defendant Nos.1 to 4. The khatha continued in the name of Kariyappa. Therefore, defendant Nos.1 to 4 sold the property in favour of defendant No.5. Hence, prayed to dismiss the suit.

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Defendant No.5 filed the written statement

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denying the averments made in the plaint and also denied the relationship of plaintiff with deceased Ramegowda. It is denied that alleged partition deed dated 06.04.1968, it is contended that defendant Nos.1 to 4 jointly executed the registered sale deed in favour of defendant No.5 for valuable consideration. Defendant No.5 is the bonafide purchaser and defendant No.5 had obtained the building license to put up construction and she had started to put up construction. It is contended that the plaintiff has come up with the present suit to harass the defendant No5 and ake unlawful gain. Hence, prayed to dismiss the suit.

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The Trial Court, on the basis of the above said

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pleadings, framed the following issues:

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1. Whether the plaintiff is entitled for the relief of declaration?

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2. Whether the plaintiff proves that, he is in lawful possession and enjoyment of the suit schedule property?

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3. Whether the plaintiff further proves that the defendants have interfered with the peaceful possession in the suit schedule property?

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4. Whether the plaintiff is entitled to the relief as prayed for?

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5. What order or decree?

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In order to substantiate the case of the plaintiff,

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the plaintiff examined himself as PW-1 and got examined two witnesses as PW-2 & PW-3 and got marked 7 documents as Exs.P1 to P7. Defendant No.1 was examined himself as DW-1 and defendant No.5 examined as DW-2 and got marked 12 documents as Exs.D1 to D12. The trial Court on the assessment of oral and documentary evidence of the parties, answered issue Nos.1 to 4 and additional issues in the affirmative and issue No.5 as per

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7 - NC: 2023:KHC:45508 RSA No. 1467 of 2012

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the final order, consequently, decreed the suit of the plaintiff. It is ordered and decreed that the sale deed executed on 04.01.2005 by defendant Nos.1 to 4 in favour of defendant No.5 in respect of suit schedule property is illegal, null and void and the same is not binding on the plaintiff and further restrained the defendants, by way of decree of permanent injunction restraining the defendants from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property. And further defendant No.5 is directed to demolish the construction put up by her on the property measuring East to West 12 ft and North to South 10.5 ft., out of total extent of 17 X 45 ft by way of Mandatory Injunction.

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The defendant No.5 aggrieved by the judgment and decree passed by the trial Court, filed an appeal in R.A.No.785/2009 on the file of Fast track Court-I, Mysore. The First Appellate Court, after hearing the parties, has framed the following points for consideration:

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1. Whether the applications filed under Order 41 Rule 27 CPC deserves to be allowed?

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8 - NC: 2023:KHC:45508 RSA No. 1467 of 2012

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2. Whether the judgment and decree of the trial Court is improper?

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3. Whether there are reasons to interfere with the findings recorded by the trial Court?

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4. What order?

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The First Appellate Court, on re-assessment of

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oral and documentary evidence, answered point No.1 in the negative and point Nos.2 and 3 in the affirmative, point No.4 as per final order and consequently allowed the appeal and set aside the judgment and decree passed by the trial Court and dismissed the suit of the plaintiff with costs. The plaintiff, aggrieved by the judgment and decree passed by the First Appellate Court, has filed this second appeal.

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This court admitted the appeal on the following

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substantial question of law :

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i. Whether the First Appellate Court committed an error in ignoring the registered partition deed dated 06.04.1958 (Ex.P.6) that indicated that the suit schedule property was allotted

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9 - NC: 2023:KHC:45508 RSA No. 1467 of 2012

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to the share of the father of the plaintiff?

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ii. Whether the First Appellate Court was justified in reversing the judgment and decree of the trial Court?

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Heard learned counsel for the plaintiff and also learned counsel for the defendant No.5.

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Learned counsel for the plaintiff submits that the plaintiff has produced Ex.P.6 to establish that the suit schedule property was fallen to the share of plaintiff's father. On the strength of Ex.P.6, name of the plaintiff's father was entered in the revenue records. She submits that after his demise, said property was transferred in the name of plaintiff. The plaintiff is the absolute owner of the suit schedule property. She submits that defendant Nos.1 to 4 have no right to execute the registered sale deed in favour of defendant No.5 and defendant No.5 has not acquired any title under the registered sale deed alleged to

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have been executed by defendant Nos.1 to 4. She submits that the First Appellate Court has committed an

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10 - NC: 2023:KHC:45508 RSA No. 1467 of 2012

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error in over looking Ex.D.8 and ignoring the registered partition deed dated 06.04.1958 as per Ex.P.6. She further submits that First Appellate Court has passed impugned judgment solely on the ground that the plaintiff has not challenged the building license issued in favour of defendant No.5. She submits that the said building license had been obtained by the defendant No.5 during the pendency of the suit. Hence, she submits that there was no occasion for the plaintiff to challenge the said building license. She further submits that the during the pendency of the suit, defendant No.5 constructed the building in suit land. Hence, on these grounds she submits that the First Appellate Court has committed an error in passing the impugned judgment and decree. Hence, on these grounds she prays to allow the appeal.

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Per contra, learned counsel for the defendant No.5 submits that at the time of purchasing the property by defendant No.5, the said property stood in the name of defendant Nos.1 to 4. Defendant No.5 after verifying the

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NC: 2023:KHC:45508 RSA No. 1467 of 2012

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records, she has purchased the suit schedule property. Hence, defendant No.5 is a bonafide purchaser. He submits that on the strength of registered sale deed executed by defendant Nos.1 to 4 in favour of defendant No.5, khata was transferred in the name of defendant No.5 and defendant No.5 obtained building license from the concerned authority and constructed the building. Hence, he submits that the plaintiff had not challenged the building license issued in favour of defendant No.5. Hence, First Appellate Court was justified in passing the impugned judgment and decree. Hence, on these grounds he prays to dismiss the appeal.

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Perused the records and considered the

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submissions of learned counsel for the parties.

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Substantial question of law No.1 : The

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plaintiff in order to prove his case examined himself as PW.1 and he has reiterated the plaint averments in the examination-in-chief and produced the documents. Ex.P.1 is the Form No.9; Ex.P.2 is the registered sale deed

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NC: 2023:KHC:45508 RSA No. 1467 of 2012

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executed by defendant Nos.1 to 4 in favour of defendant No.5; Ex.P.3 is the self assessment of tax in respect of suit schedule property; Ex.P.4 is the tax paid receipt; Ex.P.5 is demand register extract; Ex.P.6 is the certified copy of partition deed which discloses that there was partition between the children of Ankaiah @ Ankegowda and Ex.P.7 is the original partition deed dated 06.04.1958.

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It is the case of the plaintiff that partition was

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effected as per the partition deed dated 06.04.1958 wherein the suit schedule property was allotted to the share of his father in the said partition. After the death of father of plaintiff, other brothers and sisters of the plaintiff have consented to effect the khata in the name of plaintiff alone with respect to suit property. The plaintiff submitted the application to the Mysore City Corporation and obtained khata in respect of his property measuring 17 X 45 ft bearing house No.2300/1D and 2300/D3/1D. Further, the plaintiff in order to prove his case examined two witnesses who has deposed that plaintiff is in

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13 - NC: 2023:KHC:45508 RSA No. 1467 of 2012

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possession of the suit schedule property and father of the plaintiff had acquired the right over the suit schedule property by virtue of partition deed dated 06.04.1958. Thus, by producing Exs.P.6 and 7, khatha and also Ex.P.5, which discloses that father of the plaintiff was the owner of the suit schedule property. After his death, the plaintiff succeeded to the suit schedule property.

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In rebuttal, defendant No.1 was examined as

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DW.1 and he has reiterated written statement averments in the examination-in-chief and produced the documents. Ex.D1 is the family survival certificate; Ex.D2 and D3 are the certificates; Ex.D4 is the sketch; Ex.D5 is the registered sale deed executed by defendant Nos.1 to 4 in favour of defendant No.5 on 04.01.2005; Ex.D6 is the khata endorsement; Ex.D7 is the tax paid receipt; Ex.D8 is the license commencement certificate issued by Mysore City Corporation on 07.02.2006; Ex.D9 is the approved sanction plan; Ex.D10 is the provisional construction permission issued on 19.07.2006 i.e., after filing the suit,

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NC: 2023:KHC:45508 RSA No. 1467 of 2012

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Ex.D10 is the completion certificate and Ex.D11 and 12 are the demand register extract. But in the course of cross examination, he has admitted that the property was divided under the partition deed dated 06.04.1958 and the property measuring 17 X 45 ft was allotted to the share of father of plaintiff. Further admitted that the said property was allotted to the share of father of plaintiff. DW.1 also admitted that khata stood in the name of plaintiff. He deposed that he did not know khata in respect of suit schedule property measuring 17 X 45 ft was got changed in the name of Kariyappa. Defendant No.5 has deposed that she has verified the title deeds and defendant Nos.1 to 4 were the owners of suit schedule property as the khata was standing in their names. Hence, defendant No.5 hasd purchased the property and defendant 5 is bonafide purchaser. In the course of cross examination defendant No.5 has clearly admitted that there was partition in the property bearing house No.2300 under the partition deed dated 06.04.1958. Both DW.1 and 2 clearly admitted about the partition deed effected between the Boregowda,

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Karigowda and Ramegowda and partition deed was reduced into writing which was registered and the same was marked as Ex.P.6. From the perusal of the documents produced by the plaintiff, it discloses that the suit schedule property was allotted to the share of father of plaintiff, but defendant Nos.1 to 4 have not pleaded in the written statement that how defendant Nos.1 to 4 have acquired the title over the suit schedule property. The defendant Nos.1 to 4 have failed to establish their ownership over the suit schedule property. The defendant Nos.1 to 4 have no right, title to execute the registered sale deed in favour of defendant No.5. The trial Court was justified in placing reliance on Ex.P.6 and came to a right conclusion holding that the plaintiff is the absolute owner of suit schedule property and the sale deed executed by defendant Nos.1 to 4 in favour of defendant No.5 is illegal, null and void and same is not binding on the plaintiff.

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From the perusal of the records, it discloses that

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the defendant No.5 has obtained construction permission

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16 - NC: 2023:KHC:45508 RSA No. 1467 of 2012

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just prior to filing of the suit and subsequently defendant No.5 constructed the building during the pendency of suit and from the perusal of Ex.D10 it discloses that building was constructed in the month of July, 2006 and completion certificate was issued on 19.07.2006 wherein the suit was filed on 06.03.2006, it discloses that defendant No.5 had put up construction over the portion of suit schedule property during the pendency of the suit. Thus, the First Appellate Court committed an error in passing the impugned judgment solely on the ground that the plaintiff has not challenged the building license and further recorded the finding that the plaintiff has got efficacious remedy under Section 41 Rule 1(h) of Specific Relief Act. The construction permission was obtained just before filing of suit and construction was undertaken during the pendency of suit and completion certificate was issued during the pendency of the suit. The plaintiff had no occasion to challenge the sanctioned plan granted in favour of defendant No.5. The findings recorded by the First Appellate Court is arbitrary and erroneous. Hence, in

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17 - NC: 2023:KHC:45508 RSA No. 1467 of 2012

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view of the above discussion, I answer substantial

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question No.1 in the affirmative.

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Substantial question of law No.2 : As I have

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already recorded in the substantial question of law No.1 that the First Appellate Court has passed the impugned judgment without considering Ex.P6 which discloses that the said property was allotted to the share of plaintiff's father. After his demise, the said property was transferred in the name of the plaintiff. In rebuttal, defendant Nos.1 to 4 have failed to establish their title over the suit schedule property. Defendant Nos.1 to 4 have no right to execute a registered sale deed in favour of defendant No.5. Defendant No.5 had not acquired title by virtue of Ex.D5. The First Appellate Court has committed an error in reversing the judgment and decree passed by the trial Court. The plaintiff has not challenged the sanctioned plan issued in favour of defendant No.5. But the First Appellate Court ignoring Ex.P6 has proceeded to pass the impugned judgment. The impugned judgment passed by the First

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NC: 2023:KHC:45508 RSA No. 1467 of 2012

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Appellate Court is arbitrary and erroneous. Hence, In view of the above discussion, I answer substantial question of law No.2 in the negative.

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Accordingly, I proceeded to pass the following:

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ORDER

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The appeal is allowed.

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The judgment and decree passed by the

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First Appellate Court in R.A.No.785/2009 dated

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21.02.2012 passed by the Fast Track Court-I, Mysore is hereby set aside.

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The judgment and decree passed by the

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trial Court is restored.

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No order as to the costs.

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SD/JUDGE

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SKS,SSB

Jayaramu v. Krishnappa

Case brief

What is this about?

What did the court decide?

Jayaramu v. Krishnappa

Case brief

What is this about?

What did the court decide?

What the court decided

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