Dismissed

Sesappa Moolya Since Dead v. B Sunandamma and B Rathnavarma Ajri Since Dead Revathi W/O N J Kadamba Since Dead by Lrs

Karnataka HC10 Feb 2023RSA/1956/2017

Case brief

AI extract

What is this about?

In Regular Second Appeal No. 1956 of 2017, the High Court of Karnataka examined whether the First Appellate Court erred in reversing the Trial Court. The property belonged to the appellants. The lower courts disputed whether the respondent constructed the house. The High Court upheld the First Appellate Court, finding no evidence the respondent constructed the building.

What did the court decide?

The appeal was dismissed, and the judgment and decree of the First Appellate Court were upheld.

Sesappa Moolya Since Dead Vs B Sunandamma and B Rathnavarma Ajri… — Partition | Karnataka HC (2023)

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RSA No. 1956 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF FEBRUARY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE H.P.SANDESH

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REGULAR SECOND APPEAL NO. 1956 OF 2017

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BETWEEN:

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SESAPPA MOOLYA SINCE DEAD

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1(a) SMT HEMAVATHI W/O SESAPPA MOOLYA, AGED ABOUT 61 YEARS,

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1(b) MAMATHA D/O SESAPPA MOOLYA AGED ABOUT 40 YEARS

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1(c) LAXMI D/O SESAPPA MOOLYA AGED ABOUT 41 YEARS

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Digitally signed by SHARANYA T Location: HIGH COURT OF KARNATAKA

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1(d) SHWETHA D/O SESAPPA MOOLYA AGED ABOUT 36 YEARS

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APPELLANT NOS.1(a) TO 1(d) ARE R/O GOLIYANGADY, KUKKEDI VILLAGE BELTHANGADY TALUK-574 242.

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…APPELLANTS

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(BY SMT. ARCHANA MURTHY P., ADVOCATE)

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AND:

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REVATHI, SINCE DEAD BY LRS.

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SMT. MRUNALINI

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W/O. RATHNAVARMA BUNNU AGED ABOUT 45 YEARS

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VANDANA YASODHARA W/O. YASHODHARA M.K. AGED ABOUT 48 YEARS

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K. PRAVEEN AJRI S/O. N.K. KADAMBA AGED ABOUT 50 YEARS

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SMT. VANITHA S. BALLAL W/O. SURESH BALLAL AGED ABOUT 40 YEARS

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SMT. SAVITHA D/O. N.J. KADAMBA AGED ABOUT 43 YEARS OCC: ADVOCATE

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SMT. SHARMILA D/O. N.J. KADAMBA AGED ABOUT 38 YEARS

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ALL ARE RESIDENT OF KUKKEDI GUTTHU HOUSE, KUKKEDI VILLAGE AND POST BELTHANGADY TALUK, D.K.-574 242.

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…RESPONDENTS

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(BY SRI. K. CHANDRANATH ARIGA, ADVOCATE)

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 11.07.2017 PASSED IN RA NO.45/2010 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE AND JMFC, BELTHANGADY, ALLOWING THE APPEAL AND

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RSA No. 1956 of 2017

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SETTING ASIDE THE JUDGMENT AND DECREE DATED 28.1.2010 PASSED IN OS NO.220/2002 ON THE FILE OF THE CIVIL JUDGE (JR.DN) AND JMFC, BELTHANGADY, D.K.

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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 matter is listed for final hearing and I have heard the learned counsel for the appellants and learned counsel for the respondents.

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The factual matrix of the case of the plaintiffs before the Trial Court is that property bearing Sy.No.138/1 measuring 4.30 acres which is described in the ‘A‘ schedule of the plaint together with other properties of Kukkedi Village of Belthangady Taluk belongs to plaintiffs’ family. The said properties are granted under Dharkasth by the Tahsildar, Belthangady by its order dated 12.05.1961. The said ‘A‘ schedule property consists of residential building bearing Door No.191 of Kukkedi Grama Panchayath and same is described as ‘B’ schedule in the plaint. The defendant was residing in the said premises on license. In the year 1975-76, the defendant has requested the plaintiffs to permit him to reside in the said premises and recently, the defendant is acting contrary to the

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RSA No. 1956 of 2017

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rights and interest of the plaintiffs. Hence, the plaintiffs were not willing to continue him in permissive possession. Therefore, issued a notice dated 03.11.2001 by terminating the license. The defendant has received the said notice on 06.11.2001 and given untenable reply on 07.01.2002. Hence, sought for the relief of possession of ‘B’ Schedule property.

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In pursuance of the notice issued against the defendant, the defendant appeared and filed the written statement contending that ‘A’ Schedule property was barren land and this defendant was permitted to put up residential building in the year 1977 by one Sri Ratnavarma Ajri and Devaraja Ajri. Acting upon the license granted to him, he has constructed the residential building and started to reside in the said house. Afterwards, he has obtained door number from the panchayath in his own name and he is paying taxes from time to time without any objection. The said building was put up by the defendant out of his own funds and he has also constructed cow-pen, sunk a well and planted 8 coconut trees, 2 jackfruit trees and 4 cashew nut trees. All these improvements were made by the defendant by incurring expenses of more than Rs.1 lakh. Originally, the building number was 1/92C and

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stands in the name of defendant. But, subsequently, it was changed as K-108, K-2-88 from time to time. At present, the door number is K-II-191. During the invention of Mandal Panchayath at about 1990, the plaintiff No.2 exercising his political power and economical power has manipulated the panchayath records and changed his name to the said door number. The defendant being illiterate was not in a position to understand the consequences. It is contended that, license was granted by a co-sharer to execute the work of permanent character cannot be revoked at all by another co-sharer. The suit is bad for non-joinder of necessary parties. Hence, prayed for dismissal of the suit.

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Based on the pleadings, the Trial Court has framed the issues and permitted the plaintiffs and defendant to lead evidence and plaintiff No.2 examined himself as P.W.1 and got marked the documents as Exs.P1 to P5. On the other hand, the defendant has examined the GPA holder as D.W.1 and got marked the documents as Exs.D1 to D10.

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The Trial Court, after considering both oral and documentary evidence placed on record, dismissed the suit.

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RSA No. 1956 of 2017

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Hence, the plaintiffs have filed the appeal in R.A.No.45/2010. The First Appellate Court, on re-appreciation of both oral and documentary evidence placed on record, comes to the conclusion that the judgment and decree of the Trial Court requires interference and the Trial Court has committed error in not accepting the case of the plaintiffs and the defendant also failed to prove that he was granted irrevocable license as contended in the written statement. Hence, this appeal is filed challenging the divergent finding of the First Appellate Court.

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This Court, having heard the respective counsel, admitted the appeal and framed substantial question of law, whether the First Appellate Court is justified in interfering with the finding recorded by the Trial Court on issue No.2 in O.S.No.220/2002.

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Having heard the respective counsel and also on perusal of the material available on record, the main contention of the learned counsel for the plaintiffs is that, land was granted in favour of Devaraja Ajri to the extent of 4.30 acres in the year 1961 and the same is not in dispute. However, it is contended that, First Appellate Court committed an error in

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reversing the findings of the Trial Court. The counsel would vehemently contend that, first of all, the property was allotted in favour of Devaraja Ajri and the plaintiff No.2 also in the cross-examination admitted that the said Devaraja Ajri is having wife and children and hence, the plaintiffs are not entitled for seeking any relief of possession in respect of ‘B’ schedule property. The other contention of the counsel is that, the defendant invested the money to the tune of Rs.1 lakh and constructed the house, wherein the defendant is residing and plaintiffs have not proved the fact that they have constructed the residential premises in which the defendant is residing and the First Appellate Court, committed an error in casting the burden on the defendant to prove the fact that he has constructed the building and it requires interference of this Court and the First Appellate Court committed an error in reversing the finding, in coming to the conclusion that the plaintiffs have proved that they are in permissive possession and inspite of termination of license, continued in the premises. Hence, the very finding recorded by the First Appellate Court, interfering with the findings recorded by the Trial Court on issue No.2 is erroneous. Hence, it requires interference.

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RSA No. 1956 of 2017

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Per contra, learned counsel for the respondents would submit that there is no dispute with regard to the fact that property belongs to the plaintiffs and the same was granted in the year 1961. The learned counsel for the plaintiffs also would contend that, it is the very defence of the learned counsel for the defendants that the said Devaraja Ajri and plaintiff No.2 herein have given permissive possession and hence, they cannot contend that the plaintiffs cannot maintain a suit for recovery of possession in respect of ‘B’ schedule property. The counsel also vehemently contend that, when the defendants categorically admit that they are in possession of the ‘B’ schedule property and mere payment of tax in respect of the house will not create any right in favour of the defendants and the Trial Court committed an error in making an observation that the defendants are paying tax in respect of the ‘B’ schedule property.

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The counsel also brought to notice of this Court that the Trial Court committed an error in dismissing the suit of the plaintiffs in coming to the conclusion that, even though tax paid receipts are not document of title, it clearly goes to show that defendant has constructed ‘B’ schedule property, after

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RSA No. 1956 of 2017

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obtaining license from the plaintiffs and the plaintiffs have not given any license to the defendant to put up construction. But, the very observation made in Para No.11 of the Trial Court is erroneous and the Trial Court committed an error in coming to the conclusion in Para No.10 that the defendant in crossexamination has deposed that the plaintiffs are not the owners of the premises and they have constructed the house but, admitted that plot belongs to the plaintiffs. Hence, the Trial Court comes to the conclusion that, it clearly goes to show that premises was constructed by the defendant, after taking license from the plaintiffs and in order to substantiate that he has constructed the house, no material is placed before the Court and inspite of it, the Trial Court committed an error and the same is reversed by the First Appellate Court, considering the material on record and on re-appreciation of both oral and documentary evidence placed on record. The First Appellate Court also, in Para No.16 referring the admission given by the D.W.1 has come to the conclusion that, with regard to the identity of the property is concerned, property number is 191 and the same can be identified with the door number and also admitted that there is no document to show that plaintiff’s

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RSA No. 1956 of 2017

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brother was granted permission to construct the house and also taken note of the document of Ex.D1 is the special power of attorney and so also the documents which have been produced as Exs.D2 to D4 and comes to the conclusion that there is no piece of document to show that the house was constructed by the defendant in the year 1977 and since then, he is paying tax to the said house. Moreover, mere payment of tax cannot be held sufficient to come to the conclusion that the house was constructed by the defendant. Therefore, there is no iota of oral or documentary evidence to prove that the house situated in the ‘B’ schedule property has been constructed by the defendant.

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The First Appellate Court also, in Para Nos.18 and 19 discussed with regard to Section 60 of the Easements Act and comes to the conclusion that the defendant has failed to prove that he had constructed the house with the permission of the plaintiffs. In Para No.20, the First Appellate Court also observed that, except the sole testimony of the P.A. holder of the defendant, there is no other supportive evidence. There is also no documentary evidence to prove the construction of building by the defendant. Hence, comes to the conclusion that

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RSA No. 1956 of 2017

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the Trial Court committed an error in coming to the conclusion that the ‘B’ schedule premises is constructed by the defendant and the very approach of the First Appellate Court is based on the documentary evidence and oral evidence of D.W.1 and the First Appellate Court has not committed any error.

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Having considered both the reasoning given by the Trial Court as well as the First Appellate Court, substantial question of law framed by this Court is, whether the First Appellate Court has committed error in reversing the findings of the Trial Court. On perusal of the material available on record, admittedly, the property belongs to the plaintiffs and the same was granted in the year 1961. No doubt, learned counsel appearing for the appellants would contend that the property was allotted in favour of one Devaraja Ajri, the wife and children of Devaraja Ajri are not parties to the proceedings. But, it is contended in the written statement is that, admittedly, permissive possession was given in respect of vacant land of 1 acre by the plaintiff No.2 and also his brother Devaraja Ajri. It is also the contention that, they have constructed the building but, in the cross-examination of D.W.1, categorically admit that, except the residential premises, which is described in the

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RSA No. 1956 of 2017

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‘B’ schedule property, the D.W.1 categorically admits that they are not in possession of the other land. No doubt, learned counsel appearing for the defendants contend that, in the reply notice, specific defence was taken that, to the extent of 1 acre, they were given permissive possession, but the reply given by the D.W.1 in the cross-examination is opposed to the reply notice given by the defendant.

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It is also not in dispute that, it is the very case of the plaintiffs that they are in possession of the ‘B’ schedule property. It is their case that they have constructed the premises and they have given permissive possession to the plaintiffs and though, defendant contend that they have taken license from the plaintiffs and constructed the building, no material is placed before the Court and both the plaintiffs and the defendant have not placed any material regarding construction of the residential building. Admittedly, defendant No.1 is in possession of the property is not in dispute but, the Trial Court committed an error in coming to the conclusion that defendant has paid the tax and hence, the Trial Court comes to the conclusion that the building was constructed by the defendant. Mere production of the receipt for having paid the

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RSA No. 1956 of 2017

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tax is not a ground to hold that the defendant has constructed the house and the same is an erroneous finding.

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It is also observed in Para No.11, D.W.1 in her cross-examination has deposed that they have constructed the house and building belongs to them but, contend that the plaintiffs are not the owners and taking note of that evidence, the Trial Court comes to the conclusion that the premises was constructed by the defendant, after taking license from the plaintiffs and in order to prove the fact that they have taken license from the plaintiffs, no document is produced before the Court and observation is also made that, tax paid receipts are not document of title but, comes to the conclusion that the same goes to show that the defendant has constructed the ‘B’ schedule premises after obtaining license from the plaintiffs and the very approach of the Trial Court only based on the tax paid receipt is erroneous and the First Appellate Court, on reversing the finding of the Trial Court, taken note of the reasoning given by the Trial Court and also taken note of the fact that property belongs to the plaintiffs and the same was allotted in the year 1961 and it is the very contention of the plaintiffs also that the defendant was in permissive possession and the same is not

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RSA No. 1956 of 2017

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disputed by the defendant and the defendant also admits that defendant constructed the house. The First Appellate Court, considering the grounds urged in the appeal and also taking note of the evidence available on record, in Para Nos.16, 17, 18 and 19, re-assessed the material available on record and on reappreciation, comes to the conclusion that the very approach of the Trial Court is erroneous and only based on the tax paid receipt, erroneously comes to the conclusion that building was constructed by the defendant. Hence, taking note of the material on record, the First Appellate Court rightly comes to the conclusion that the defendant also failed to prove the fact that he has constructed the building. The very contention of the learned counsel for the appellants that burden is on the defendants to prove that they have constructed the building and the same has not been proved. At the same time, the defendant has also taken the specific defence in the written statement that they have constructed the building and the person who asserts has to prove the same and no such material is placed before the Court.

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Having taken note of the fact that the plaintiffs are

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the owners of the property and the same was allotted in favour

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of the plaintiffs in the year 1961 and when the defendant categorically admits that plaintiff No.2 has given permissive possession and with regard to the permissive possession is concerned, there is no dispute with regard to the issues involved between the parties, I do not find any error committed by the First Appellate Court in reversing the findings of the Trial Court. Hence, I answer the substantial question of law framed by this Court as ‘negative’ and I do not find any merit in the appeal to reverse the findings of the First Appellate Court.

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It is the other contention of the learned counsel for the appellants that, under Section 60(b) of Easements Act license was given and construction was made by the defendant and the same is an irrevocable license. The said contention of the counsel cannot be accepted for the reason that the First Appellate Court has taken note of the fact that, in order to prove the contention that defendant had constructed the building under irrevocable license, definite finding is given that no material is placed before the Court with regard to the license given by the plaintiffs and thereafter construction was made by the defendant and well reasoned order has been passed by the First Appellate Court and the First Appellate Court has given

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RSA No. 1956 of 2017

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anxious consideration to the material available on record and when the defendants failed to prove the fact that they have constructed the building after obtaining irrevocable license from the plaintiffs, the contention that construction was made by the defendants after obtaining irrevocable license from the plaintiffs cannot be accepted.

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In view of the discussions made above, I pass the

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following:

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ORDER

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The appeal is dismissed.

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Sd/JUDGE

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ST List No.: 1 Sl No.: 53

Sesappa Moolya Since Dead v. B Sunandamma and B Rathnavarma Ajri Since Dead Revathi W/O N J Kadamba Since Dead by Lrs

Case brief

What is this about?

What did the court decide?

Sesappa Moolya Since Dead v. B Sunandamma and B Rathnavarma Ajri Since Dead Revathi W/O N J Kadamba Since Dead by Lrs

Case brief

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What did the court decide?

What the court decided

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