Allowed

G H Basanna v. Bheemanna

Karnataka HC14 Dec 2023RSA/1535/2007

Case brief

AI extract

What is this about?

This court allowed the second appeals against the First Appellate Court's judgment. The court found the Commissioner's report inconsistent with court witness evidence. Relying on the trial court findings of no title deeds for the excess land claimed from the Panchayat, the court set aside the First Appellate Court's decision to sue Bheemanna's suit and dismissed it, while confirming the dismissal

What did the court decide?

Allowed first appellant's appeal, set aside First Appellate Court judgment in R.A.No.241/2002, dismissed suit in O.S.No.63/1992.

G H Basanna Vs Bheemanna — Property and Title | Karnataka HC (2023)

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1 - NC: 2023:KHC:45833 RSA No. 1535 of 2007 C/W RSA No. 1534 of 2007

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 14^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 1535 OF 2007 (INJ)

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C/W

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REGULAR SECOND APPEAL NO. 1534 OF 2007

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In RSA No.1535/2007: BETWEEN:

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G. H. BASANNA, S/O. GADDI HANUMANTHAPPA, AGED ABOUT 63 YEARS, AGRICULTURIST BY PROFESSION, R/O. THIMMALAPURA VILLAGE, MOLAKALMURU TALUK, CHITRADURGA - 577 501.

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…APPELLANT

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Digitally signed by R DEEPA Location: High Court of Karnataka

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(BY SRI. B. M. SIDDAPPA., ADVOCATE)

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AND:

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BHEEMANNA, S/O. KORI BAGGANNAPPA, AGED ABOUT 63 YEARS, AGRICULTURIST BY PROFESSION, R/O. THIMMALAPURA VILLAGE MOLAKALMURU TALUK, CHITRADURGA - 577 501.

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…RESPONDENT

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2 - NC: 2023:KHC:45833 RSA No. 1535 of 2007 C/W RSA No. 1534 of 2007

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(BY SRI. B. K. MANJUNATH., ADVOCATE)

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RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGEMENT AND DECREE DT.03.03.2007 PASSED IN RA.NO.241/02 ON THE FILE OF THE CIVIL JUDGE (SR.DN.) CHALLAKERE, PARTLY ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DT. 31.07.2001 PASSED IN OS.NO.63/1992 ON THE FILE OF THE CIVIL JUDGE (JR.DN.) AND JMFC., MOLAKALMURU,

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In RSA No.1534/2007: BETWEEN:

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G. H. BASANNA, S/O. GADDI HANUMANTHAPPA, AGED ABOUT 63 YEARS, AGRICULTURIST BY PROFESSION, R/O. THIMMALAPURA VILLAGE, MOLAKALMURU TALUK, CHITRADURGA - 577 501.

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…APPELLANT

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(BY SRI. B. M. SIDDAPPA., ADVOCATE)

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AND:

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1.BHEEMANNA, S/O. KORI BAGGANNAPPA, AGED ABOUT 57 YEARS,

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2.NINGAPPA, S/O. KORI BAGGANNAPPA, AGED ABOUT 54 YEARS,

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3 - NC: 2023:KHC:45833 RSA No. 1535 of 2007 C/W RSA No. 1534 of 2007

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MARUTHI, S/O. KORI BAGGANNAPPA, AGED ABOUT 48 YEARS,

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ALL ARE AGRICULTURIST BY PROFESSION, R/O. THIMMALAPURA VILLAGE MOLAKALMURU TALUK, CHITRADURGA - 577 501.

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…RESPONDENTS

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(BY SRI. B. K. MANJUNATH., ADVOCATE)

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RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGEMENT AND DECREE DT.03.03.2007 PASSED IN RA.NO.242/02 ON THE FILE OF THE CIVIL JUDGE (SR.DN.) CHALLAKERE, PARTLY ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DT. 31.07.2001 PASSED IN OS.NO.27/1992 ON THE FILE OF THE CIVIL JUDGE (JR.DN.) AND JMFC., MOLAKALMURU DECREEING THE SUIT FOR PERMANENT INJUNCTION.

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

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ORDER

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These second appeals are filed by the appellant challenging the common judgment and decree dated 03.03.2007 in R.A.Nos.241/2002 and 242/2002 by the Civil Judge (Senior Division), Challakere.

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4 - NC: 2023:KHC:45833 RSA No. 1535 of 2007 C/W RSA No. 1534 of 2007

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For the sake of convenience, parties are referred to as per their names appearing in O.S.No.27/1992 before the trial Court in order to avoid confusion. G.H.Basanna is the plaintiff and Bheemanna is the defendant No.1, Ninganna and Maruti are defendant Nos.2 and 3 in O.S.No.27/1992.

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The brief facts leading rise to filing of these appeals are as under:

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Basanna filed a suit for permanent injunction against Bheemanna and others in O.S.No.27/1992. It is the case of Basanna that he is the absolute owner in possession of the property bearing Khata No.140 measuring east west 78 ft, north south 45 ft, situated at Thimmalapura village. The suit property was granted in favour of father of plaintiff in the year 1950-51 by the Tahasildar of Molakalmuru and obtained a sale certificate to an extent of 20 X 10 yards. After the demise of his father, Basanna continued to be in possession of the suit property. The khata stands in the name of father of plaintiff.

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5 - NC: 2023:KHC:45833 RSA No. 1535 of 2007 C/W RSA No. 1534 of 2007

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Bheemanna and others started interfering and trying to trespass over the suit schedule property. Hence,

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Bheemanna filed a suit in O.S.No.27/1992.

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Bheemanna and others filed a written

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statement contending that the suit property was granted in favour of Sanna Bagurappa in the year 1950-51. After his death, khata was changed in the name of Bheemanna and others and they are paying kandayam to the Panchayat and they are the owners of property situated towards southern side of their property. Basanna is no more and nowhere concerned to the property bearing Khata No.134 measuring east to west 36 ft, north to south 78 ft. There is no relationship between Basanna and Bheemanna and his brothers. It is contended that Bheemanna and his brother never tried to trespass into the property of Basanna, but Basanna is trying to interfere with the possession of Bheemanna and his brothers and prayed to dismiss the suit O.S.No.27/1992.

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6 - NC: 2023:KHC:45833 RSA No. 1535 of 2007 C/W RSA No. 1534 of 2007

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Bheemanna filed a suit for declaration of title

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and permanent injunction against Basanna in O.S.No.63/1992. Bheemanna has reiterated the written statement averments filed in O.S.No.27/1992 in the plaint in O.S.No.63/1992. Basanna filed a written statement denying that Bheemanna is the owner and in possession

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over the suit schedule property. It is contended that Bheemanna created documents and filed the suit. Hence, prayed to dismiss the suit.

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The trial Court clubbed both the suits and

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framed issues.

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Issues in O.S.No.27/1992

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1. Whether the plaintiff proves his lawful possession over the suit property?

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1. Whether the plaintiff proves the alleged obstruction said to have been caused by the defendants to his possession and enjoyment the suit property?

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1. Whether the plaintiff is entitled for the relief as prayed for?

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1. What order and what decree ?

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7 - NC: 2023:KHC:45833 RSA No. 1535 of 2007 C/W RSA No. 1534 of 2007

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Issues in O.S.No.63/1992

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1. Whether plaintiff proves his lawful possession over the suit schedule property?

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1. Whether plaintiff proves alleged obstruction?

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1. Whether plaintiff is entitle for the relief of injunction?

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1. What order or decree?

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Basanna was examined as PW.1 and examined

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3 witnesses as PW.2 to 4 and got marked 8 documents as

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Exs.P.1 to 8. Bheemanna was examined as DW.1 and examined 2 witnesses as DW.2 and 3 and got marked 2 documents as Exs.D1 and D2. The trial Court on assessment of oral and documentary evidence, answered issues in O.S.No.27/1992 i.e., issue Nos.1 to 3 in the affirmative and issue No.4 as per final order and answered issues in O.S.No.63/1992 i.e., issue No.1 and 3 partly in affirmative, issue No.2 in the affirmative, additional issue No.1 in the negative, issue No.4 as per the final order. The trial Court decreed the suit filed by Basanna and suit filed by Bheemanna is partly decreed granted a decree for

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8 - NC: 2023:KHC:45833 RSA No. 1535 of 2007 C/W RSA No. 1534 of 2007

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permanent injunction restraining Bheemanna and his brothers from interfering with Basanna possession and enjoyment of property bearing khanushmari No.140 measuring east west 78 ft, north south 45 ft, situated at Thimmalapura village, Taluka Molakalmuru. Similarly, Basanna was restrained by way of permanent injunction from interfering with the peaceful possession and enjoyment of suit property bearing khata No.134 measuring east west 20 yards, north south 10 yards i.e,. 60 X 30 ft. The relief of declaration sought by Bheemanna was rejected. Bheemanna aggrieved by the common judgment passed in O.S.No.63/1992 and O.S.No.27/1992 preferred appeals in R.A.No.241/2002.

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The First Appellate Court after hearing the parties framed the following points for consideration.

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1) Whether the findings of the trial Court in holding that the plaintiffs in O.S.No.63/92 have failed to prove their title to the suit schedule property is correct?

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2) Whether the trial Court is correct in holding that the plaintiff in O.S.No.27/92 is in lawful possession of the suit schedule property?

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9 - NC: 2023:KHC:45833 RSA No. 1535 of 2007 C/W RSA No. 1534 of 2007

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3) Whether the judgment and decree of the lower Court calls for interference?

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4) What order ?

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The First Appellate Court on re-assessment of oral and documentary evidence answered point No.1 and 3 in the affirmative, point No.2 in the negative, point No.4 as per final order. The First Appellate Court vide judgment dated 03.03.2007 allowed the appeals in part with costs

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and set aside the judgment and decree passed in O.S.No.27/1992 and consequently, dismissed the suit filed by Basanna in O.S.No.27/1992 and the suit filed by Bheemanna was decreed and restrained Basanna from interfering in the portion marked as DCGH as shown by the Commissioner in his sketch. Basanna aggrieved by the judgment and decree passed in R.A.Nos.241/2002 and 242/2002 preferred these second appeals.

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This court admitted the appeals to consider the following substantial questions of law :

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10 - NC: 2023:KHC:45833 RSA No. 1535 of 2007 C/W RSA No. 1534 of 2007

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1. Whether the first appellate court was justified in believing the evidence of Commissioner though report of the Commissioner and evidence tendered by him are inconsistent?

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2. Whether the first appellate court was justified in not considering the admission of the plaintiff while considering the possession of the suit schedule property?

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Heard learned counsel for the parties.

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Learned counsel appearing for Basanna submits that the First Appellate Court by placing reliance on the Commissioner report passed a impugned judgment. Hence, he submit that the Commissioner report is inconsistent with the evidence of Court Commissioner. The evidence of CW-1 has not been properly appreciated. He submits that Bheemanna has not produced any other records to show that Bheemanna is in possession of the suit schedule property. Hence, he submits that on the contrary Basanna has produced the records to establish his possession over the suit schedule property. Hence, the First Appellate Court has committed an error in placing the

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11 - NC: 2023:KHC:45833 RSA No. 1535 of 2007 C/W RSA No. 1534 of 2007

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reliance on the report of the Commissioner and further submits that the impugned judgments passed by courts below are arbitrary and erroneous. Hence, on these grounds he prays to allow the appeals.

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Per Contra, learned counsel for Bheemanna,

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submit that Bheemanna is in possession of the suit schedule property and the same is corroborated by the Commissioner report, wherein the Commissioner has

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pointed out that Bheemanna is in possession and enjoyment of the suit schedule property and further submits that First Appellate Court was justified in passing the impugned judgments. Hence, on these grounds, he prays to dismiss the appeals.

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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 Nos.1 and 2:-

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Substantial questions of law Nos.1 and 2 are interlinked

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12 - NC: 2023:KHC:45833 RSA No. 1535 of 2007 C/W RSA No. 1534 of 2007

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with each other and taken together for common discussion

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in order to avoid the repetition of facts.

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It is the case of Basanna in O.S.No.27/1992 that Basanna is the absolute owner of suit schedule property and same was granted by the Tahasildar in the year 1950. Bheemanna also claim to be in possession of property scheduled in O.S.No.63/1992 and the same was granted in the year 1950-51. In order to prove their possession both the parties were examined. Though the parties have produced the documents establishing their possession, however, Basanna and Bheemanna are in possession more than whatsoever granted, the remaining portion of land belongs to Grama Panchayath. Further, both the Courts were disbelieved the oral and documentary evidence and documents produced by both the parties. During pendency of suit the Court Commissioner was appointed and submitted the report stating that Bheemanna is in possession of the suit schedule property.

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13 - NC: 2023:KHC:45833 RSA No. 1535 of 2007 C/W RSA No. 1534 of 2007

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From the perusal of the evidence of the

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Commissioner and report of the Commissioner both are inconsistent. The First Appellate Court committed an error in placing reliance on the Commissioner report. Neither Basanna nor Bheemanna produced any records to show that they are in possession of suit schedule property. Further, the trial Court as well as First Appellate Court have recorded a finding that Bheemanna has not produced any title deed to establish his ownership over the suit schedule property.

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Further, the First Appellate Court has recorded

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the finding in Para No.13, which reads as under:

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" Plaintiffs in O.S.63/92 have claimed the ownership to the extent of more than the extent of site allotted by the Tahasildar in the year 1950/51. Originally the sites allotted to Plaintiff and Defendants was the land belonged to the Panchayath. Both the parties are claiming excess extent of site in the property of Panchayath. When the Plaintiffs in O.S.No.63/92 are claiming ownership in excess site granted to them by the Tahasildar in the year 1950/51, the presence of the Panchayath is necessary. Plaintiffs in O.S.No.62/92 are claiming

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14 - NC: 2023:KHC:45833 RSA No. 1535 of 2007 C/W RSA No. 1534 of 2007

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ownership to a larger extent then the site granted to them against the Village Panchayath. In the absence of Village Panchayath, the right of ownership to the extent of site as claimed by Plaintiff in O.S.No.63/92 cannot be decided. MoreOver, it is not the case of the Plaintiffs in O.S.No.63/92 they have perfected their title in the suit schedule property by way of adverse possession either against the defendant or against Group Panchayath. The Plaintiffs in O.S.No.63/92 have produced only property extract for the year 1998/99. Property extract is not a title deed to come to a conclusion that Plaintiffs are the owners of the property as shown in suit schedule. It is the specific case of the Plaintiff in O.S.No.63/92 that suit schedule site was allotted to Baggurappa by the Tahasildar Molkalmuru in the year 1950/51. In such a circumstances, it is incumbent upon the Plaintiffs in O.S.No.63/92 to produce title deeds to prove their title in the suit schedule property. No such title deed is produced by the Plaintiff in O.S.No.63/92. Therefore, findings recorded by the learned trial Judge that the Plaintiffs have failed to prove that they are the absolute owners of suit schedule property in O.S.No.63/92 is correct. In view of the fore-going reasons, I answer this point in the negative."

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From the perusal of the Para 13 of the

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judgment of the First Appellate Court, the First Appellate

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Court has recorded a finding that both the parties are

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15 - NC: 2023:KHC:45833 RSA No. 1535 of 2007 C/W RSA No. 1534 of 2007

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claiming excess extent of site in the property of Panchayath. Neither Basanna nor Bheemanna had any right over the suit schedule property. Further, neither Basanna nor Bheemanna has produced any record to show that they are in possession of the excess extent of land belonging to the Panchayath. Further, from the perusal of the judgment passed by the First Appellate Court, the First Appellate Court has not assigned any reasons except relying on stray sentence, it has observed that Bheemanna is in possession of the suit schedule property. The First Appellate Court has committed an error in placing the reliance on the stray sentence and Commissioner report. As I have already recorded above, the Commissioner report is inconsistent with the evidence of CW-1. The First Appellate Court has committed an error in decreeing the suit in O.S.No.63/1992. In view of the above discussion I answer substantial questions of law Nos.1 and 2 in the Negative.

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16 - NC: 2023:KHC:45833 RSA No. 1535 of 2007 C/W RSA No. 1534 of 2007

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In view of the aforesaid facts and circumstances,

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I proceed to pass the following:

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ORDER

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The appeal in RSA.No.1535/2007 is

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allowed.

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The judgment passed in R.A.No.241/2002 is set aside. Consequently, suit in O.S.No.63/1992 is dismissed.

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The appeal in RSA.No.1534/2007 is dismissed, confirming the judgment passed in R.A.No.242/2002.

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No order as to the costs.

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SD/JUDGE

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SRA

G H Basanna v. Bheemanna

Case brief

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G H Basanna v. Bheemanna

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