Dismissed

Sri Rangaiah v. Smt Gowramma

Karnataka HC9 Jan 2023RSA/239/2022

Case brief

AI extract

What is this about?

The High Court dismissed a second appeal under Section 100 CPC challenging a decree for possession. Upholding that boundaries prevail over survey number discrepancies, the Court affirmed the lower courts' finding that plaintiffs are absolute owners of the property defined by document boundaries.

What did the court decide?

The appeal filed under Section 100 CPC was dismissed, dismissing the prayer for a fresh reference to Provincial Government for a report.

Sri Rangaiah Vs Smt Gowramma — Partition | 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 JANUARY, 2023

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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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R.S.A.NO.239/2022 (DEC/INJ)

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BETWEEN:

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SRI RANGAIAH, S/O DYAVAIAH, SINCE DEAD BY LRS.

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1(a) SMT. KARIYAMMA, W/O RANGAIAH, AGED ABOUT 65 YEARS.

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1(b). DYAVAIAH, S/O RANGAIAH, AGED ABOUT 39 YEARS.

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1(c). THIMMAIAH, S/O RANGAIAH, AGED ABOUT 41 YEARS.

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1(d). SRI SOMAIAH, S/O RANGAIAH, AGED ABOUT 39 YEARS.

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1(e). SRI LOKESH, S/O RANGAIAH, AGED ABOUT 37 YEARS.

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ALL ARE R/AT NAGENAHALLY VILLAGE, JAVGAL HOBLI, ARASIKERE TALUK, HASSAN DISTRICT – 573 115.

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...APPELLANTS

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(BY SMT. VIDYA S, ADVOCATE)

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AND:

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SMT. GOWRAMMA, W/O LATE CHANNABASAPPA, AGED ABOUT 57 YEARS

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SRI KUMAR, S/O LATE CHANNABASAPPA, AGED ABOUT 43 YEARS.

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BOTH ARE R/AT NAGENAHALLY VILLAGE, JAVGAL HOBLI, ARASIKERE TALUK. HASSAN DISTRICT – 573 115.

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...RESPONDENTS

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THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC, 1908 AGAINST THE JUDGMENT AND DECREE DATED 09.11.2021 PASSED IN RA.NO.4/2018 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, ARSIKERE, DISMISSING APPEAL AND CONFIRMING THE JUDGMETN AND DECREE DATED 09.10.2017 PASSED IN OS.NO. 171/2010 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE AND JMFC, ARASIKERE.

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THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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This matter is listed for admission today. Heard the learned counsel for the appellants.

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This appeal is filed challenging the judgment and decree dated 09.11.2021, passed in R.A.No.4/2018, on the file of the Senior Civil Judge and JMFC, Arsikere.

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The factual matrix of the case of the plaintiffs before

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the Trial Court is that the plaintiffs are the owner in possession and enjoyment of the suit schedule property. Plaintiff No.2 is the son of plaintiff No.1. Husband of plaintiff No.1 late Channabasappa had purchased suit schedule property from the mother of defendant No.1 through registered sale deed dated 09.05.1972 for valuable consideration and from the date of purchase, the said Channabasappa was in possession and enjoyment over the same. After his death, the plaintiffs are in possession and enjoyment of the suit schedule property. On the basis of the sale deed, katha has been changed in the name of late Channabasappa in M.R.No.19/1972-73 and the plaintiffs are paying kandaya to the property and in the suit property, three Neem tress are situated and the plaintiffs are growing maize crop on the same. The defendants without having any right or possession over the suit schedule property are interfering with the possession, hence without any other option they have filed a suit for the relief of declaration and for injunction.

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The defendants appeared through their counsel and filed the written statement contending that the survey number of the suit schedule property is wrongly mentioned and the

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boundary which is shown in the suit schedule property is tallied with the boundary of re-Sy.No.60/8 to an extent of 1 acre 24 guntas, which is the property of the defendants. Hence, they contended that the plaintiffs are intentionally showing wrong boundary to grab the defendants property i.e., Sy.No.60/8. The suit schedule property originally belongs to the grandmother of defendant Nos.3 to 5 and the mother of defendant No.1. Based on the pleadings, the Trial Court framed the issues with regard to whether the plaintiffs are the owner of the suit schedule property and in possession of the property and whether they are entitled for the relief. The plaintiff No.2 examined himself as P.W.1 and examined two witnesses as P.W.2 and P.W.3 and got marked the documents at Exs.P.1 to 11. On the other hand, defendant No.3 examined himself as D.W.1 and got marked the documents at Exs.D.1 to 4 and examined another witness as D.W.2. The Trial Court after considering both oral and documentary evidence placed on record, answered issue No.1 in affirmative in coming to the conclusion that the plaintiffs have purchased the suit schedule property and denied the contention of the defendants and answered issue No.2 as negative and other issues as affirmative in coming to the occlusion that the

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plaintiffs have purchased the property and schedule mentioned in the sale deed is tallied with the possession and the plaintiffs are in occupation and also taken note of evidence of D.W.1 admission and decreed the suit. The same is challenged before the Appellate Court in R.A.No.4/2018.

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The grounds urged in the appeal is that the Trial Court committed an error in decreeing the suit and the Trial Court has not considered Sy.No.60/8 and the plaintiffs are claiming the right in respect of Sy.No.60/8 and the Trial Court committed an error in taking note of the description of the boundary mentioned in the suit and erroneously comes to the conclusion that the boundaries prevail. The Appellate Court on re-appreciation of both oral and documentary evidence placed on record formed the point whether the Trial Court committed an error in not properly appreciating the evidence and judgment is perverse. The First Appellate Court considering both oral and documentary evidence placed on record comes to the conclusion that the evidence of the witnesses is properly appreciated by the Trial Court and finding given by the Trial Court is not perverse. Hence, the present second appeal is filed before this Court.

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The main contention of the learned counsel for the appellants is that the Trial Court and the Appellate Court failed to take note of the material on record. The sale deed was executed by the grandmother of defendant Nos.3 to 5 and mother of defendant No.1 and the schedule property is actually Sy.No.60/8 measuring 1 acre 24 guntas and Sy.No.36/2 is measuring only 1 acre 19 guntas, which has neither been aware nor proved by the plaintiffs and hence the Trial Court has committed an error and the Appellate Court also committed an error in concurring the finding of the Trial Court and hence it requires interference of this Court and to frame the substantial question of law.

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Having heard the learned counsel for the appellants

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and also on perusal of the material available on record, it is not in dispute that the suit schedule property was purchased by the father and husband of the plaintiffs in the year 1972. The defendants also not disputes the very execution of the sale deed by Sannamallamma, who is the grandmother of defendant Nos.3 to 5 and mother of defendant No.1. But the only contention of the learned counsel for the appellants is that Sy.No.60/8 is in respect of the suit schedule property and not Sy.No.36/2 and

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also contend that the sale deed is executed in respect of Sy.No.36/2 and not in respect of Sy.No.60/8 and both the Courts have committed an error. Having considered the material available on record, the Trial Court in page No.9 of the judgment has taken note of the boundaries mentioned in the suit and also the material on record and the documents which have been produced by the plaintiffs and the defendants and also taken note of the admission given by D.W.1 with regard to the sale of the property by Sannamallamma in favour of the plaintiffs and also delivering of the possession of suit schedule property by sale deed dated 09.05.1972. The material discloses that the boundaries mentioned is in respect of Sy.No.60/8 and when D.W.1 was cross-examined and he said that he was not aware of the existence of the neem trees and it is the contention of the plaintiffs that there are three neem trees in the suit schedule property and when he was not aware of existence of three neem trees in the property, the Trial Court comes to the conclusion that the plaintiffs are in possession of the property as mentioned in the sale deed boundaries and the boundaries will prevail and not the survey number and hence the Trial Court answered point

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No.1 as affirmative that they have purchased the suit schedule property which has been described in the sale deed.

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The First Appellate Court on considering the grounds urged in the appeal memo, formulated point Nos.1 and 2 and comes to the conclusion that the Trial Court has rightly appreciated the evidence available on record and apart from that, taken note of in paragraph No.17 about the execution of the sale deed by Sannamallamma on 09.05.1972 and also taken note of the boundaries mentioned in the sale deed and thereafter the khatha was also transferred in M.R.No.19/197273. The Court has to take note of the material available on record and also the boundaries mentioned in the sale deed and the same has been discussed in paragraph No.18. In paragraph No.19 admission given by D.W.1 in the cross-examination is extracted and the answer given by D.W.1 clearly shows that Sannamallamma was the owner of the property of both Sy.No.36/2 and Sy.No.60/8 and though the survey number is mentioned as Sy.No.36/2, but boundaries mentioned is in respect of Sy.No.60/8. Having taken note of the said material and also the admission given by D.W.1 in the cross-examination, the Trial Court considered the material on record and hence the

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Appellate Court also comes to the conclusion that the boundaries mentioned in the suit schedule and the boundaries mentioned in the report with regard to Sy.No.60/8 as per the Commissioner report match with each other. Having taken note of the Commissioner report with regard to suit schedule, the First Appellate Court comes to the conclusion that the suit property was given to the plaintiffs and the possession of the property was also delivered in favour of the plaintiffs and the boundaries which have been mentioned in the document prevails.

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The Appellate Court also relied upon the judgment of the Apex Court in the case of SHEODHYAN SINGH AND OTHERS v. MST. SANICHARA KUER AND OTHERS reported in AIR 1963 SC 1879, wherein the Apex Court discussed with regard to the boundaries which have been mentioned in the document. It is held that the mistake in the plot number must be treated as a mere misdescription which does not affect the identity of the property sold. The Appellate Court taken note of the boundaries mentioned in the said deed and comes to the conclusion that the Trial Court has considered the same, particularly considered the description mentioned in the sale deed and comes to the conclusion that the plaintiffs are the

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absolute owner of the property and the same has been affirmed by the Appellate Court.

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The very contention of the learned counsel for the appellants is that total extent of Sy.No.60/8 is 1 acre 24 guntas and the property sold is only 1 acre 19 guntas and it is the claim of the plaintiffs to the extent of 1 acre 19 guntas before the Trial Court and not granted decree in respect of 1 acre 24 guntas. When such being the case when the description of the sale deed shows with regard to the boundaries, the boundaries will prevail and hence, I do not find any error committed by the Trial Court and the First Appellate Court to invoke Section 100 of CPC to frame any substantial question of law and also not find any perversity in the finding of the Trial Court and the First Appellate Court and hence there is no merit in the second appeal.

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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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Sri Rangaiah v. Smt Gowramma

Case brief

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Sri Rangaiah v. Smt Gowramma

Case brief

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