Dismissed

H.M. Omprakash v. the Chief Secretary

Karnataka HC29 Nov 2023RSA/34/2016

Case brief

AI extract

What is this about?

The High Court dismissed the regular second appeal filed by an unsuccessful plaintiff seeking declaration of title. The Court held the suit was not maintainable as the underlying gift deed executed by the plaintiff's great-grandfather remained unchallenged for over three decades. The Court found no substantial question of law arose. The appeal was dismissed.

What did the court decide?

Suit for declaration of title and injunction was previously dismissed; appeal against lower courts' orders dismissed.

H.M. Omprakash Vs the Chief Secretary — Succession and Inheritance | Karnataka HC (2023)

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1 - NC: 2023:KHC:43103 RSA No. 34 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 29^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM REGULAR SECOND APPEAL NO. 34 OF 2016 (DEC)

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BETWEEN:

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H. M. OMPRAKASH, S/O B. MAHADEVAPPA, AGED ABOUT 49 YEARS, R/AT AKSHAYA NILAYA, R.P. ROAD, NANJANGUD TOWN, MYSURU DISTRICT - 571 301.

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…APPELLANT

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(BY SRI. P. MAHESHA, ADVOCATE)

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AND:

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THE CHIEF SECRETARY, STATE GOVERNMENT OF KARNATAKA, VIDHANA SOUDHA, BENGALURU - 560 001.

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Digitally signed by CHAITHRA P Location: High Court of Karnataka

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THE DEPUTY COMMISSIONER, CHAMARAJANAGAR DISTRICT, CHAMARAJANAGAR - 571 313.

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THE THASILDAR, GUNDLUPET TALUK, GUNDLUPET - 571 111.

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…RESPONDENTS

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(BY MS. ANUKANKSHA KALKERI, HCGP FOR R1 TO R3)

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 26.10.2015 PASSED IN

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NC: 2023:KHC:43103 RSA No. 34 of 2016

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R.A NO.6/2012 ON THE FILE OF THE PRL. DISTRICT AND SESSIONS JUDGE, CHAMARAJANAGAR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 24.01.2012 PASSED IN O.S NO.262/2002 ON THE FILE OF THE SENIOR CIVIL JUDGE AND C.J.M., CHAMARAJANAGAR.

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

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JUDGMENT

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The captioned second appeal is filed by the unsuccessful plaintiff, who has questioned the concurrent judgments of the Courts below, wherein plaintiff's suit seeking relief of declaration and injunction is dismissed by both the Courts by taking cognizance of the fact that the plaintiff's grandfather has gifted this property to the State under registered sale deed dated 02.05.1956 vide Ex.D.3.

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For the sake of brevity, the rank of the parties

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are referred as they are ranked before the Trial Court.

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3. Facts leading to the case are as under:

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The present suit is filed by the plaintiff, asserting that he is the absolute owner and in possession of the suit

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3 - NC: 2023:KHC:43103 RSA No. 34 of 2016

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schedule property. Plaintiff claimed that the Government of Karnataka granted this land to his grandfather, H.K.Bellapa, in 1941-42. The plaintiff further pleaded that his grandfather was personally cultivating the land in question and after his death, plaintiff's grandmother, namely, Nagamma, was in possession and enjoyment until her death. Plaintiff further pleaded that after the death of his grandmother, his father inherited the property and he was enjoying the suit land as an absolute owner and was in exclusive possession. Plaintiff claimed that after the death of his father, he has inherited the property and is in lawful possession over the suit schedule property.

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The plaintiff has also pleaded in the plaint that the defendant-State is asserting right on the basis of the gift deed executed by his great-grandfather, i.e., the father of H.K.Bellapa, dated 02.05.1956. Plaintiff also pleaded that, on account of continuous possession for more than 35 years, plaintiff even otherwise has perfected title by way of adverse possession.

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NC: 2023:KHC:43103 RSA No. 34 of 2016

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On receipt of summons, defendant did not

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choose to file written statement and after remand, defendant-State filed the written statement and contested the proceedings and a copy of the gift deed was produced and marked as Ex.D.3.

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The Trial Court, having examined the pleadings and oral and documentary evidence, answered issue Nos.1 and 2 in the negative and held that plaintiff has failed to prove his title over the suit schedule property and therefore dismissed the suit.

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Plaintiff feeling aggrieved by the judgment and decree of the Trial Court, preferred an appeal before the Appellate Court in R.A.No.6/2012. The Appellate Court, on re-appreciation of evidence, has concurred with the findings of the Trial Court. Referring to the gift deed, vide Ex.D.3, the Appellate Court held that plaintiff ought to have brought suit within three years of the date of execution of the gift deed. Therefore, the Appellate Court

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5 - NC: 2023:KHC:43103 RSA No. 34 of 2016

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was of the view that the present suit instituted after 32 years of execution of the gift deed is not maintainable. Consequently, appeal is dismissed. These concurrent findings are under challenge.

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Heard learned counsel appearing for the plaintiff and learned High Court Government pleader appearing for the State. Perused the concurrent findings of the Courts below.

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On examining the pleadings and prayer sought

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in the plaint, this Court would find that the plaintiff, even at the time of filing the suit, had not taken steps to question the gift deed executed by his great-grandfather in 1956. If the gift deed executed by the plaintiff's greatgrandfather has gone unchallenged, this Court is of the view that both the Courts were justified in denying the declaration of title of the plaintiff. If the gift deed has gone unchallenged, the plaintiff cannot maintain a suit seeking a mere declaration of his right and title over the property.

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6 - NC: 2023:KHC:43103 RSA No. 34 of 2016

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Admittedly, the suit land was lost by the family in 1956 under a registered gift deed. The plaintiff's father has also not challenged the gift deed during his lifetime. The inter se partition set up by the plaintiff and thereby asserting title over the suit land is of no consequence if the family has lost the suit land in 1956. The contention of plaintiff that pursuant to partition, he has acquired rights cannot be looked into. The suit in its present form also could not have been entertained by the Courts. In absence of challenge to the gift deed, the plaintiff cannot assert that he is the absolute owner of the suit schedule property. The plaintiff's contention that his great-grandfather had no saleable title as it was his son Bellapa, who is the owner, also cannot be examined at this juncture, as rightly pointed out by the learned HCGP. There is no proper foundation in that regard.

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Be that as it may. Both the Courts referring to rebuttal evidence let in by the defendants, have declined to grant relief of declaration of title. The findings recorded

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NC: 2023:KHC:43103 RSA No. 34 of 2016

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by both the Courts on issue Nos.1 and 2 does not suffer from any infirmities. The conclusion recorded is based on clinching rebuttal evidence. The reliance placed by the learned counsel appearing for the plaintiff in the two judgments is not applicable to the present set of facts. Therefore, no substantial question of law would arise for consideration. The regular second appeal is devoid of merits and accordingly stands dismissed .

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In view of dismissal of second appeal, all pending

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applications, if any, do not survive for consideration and stand disposed of.

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Sd/JUDGE

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HDK List No.: 1 Sl No.: 3 CT: BHK

H.M. Omprakash v. the Chief Secretary

Case brief

What is this about?

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H.M. Omprakash v. the Chief Secretary

Case brief

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