Dismissed

Karigowda v. Smt Karagamma

Karnataka HC7 Dec 2023RSA/621/2012

Case brief

AI extract

What is this about?

In this second appeal regarding a suit for declaration of title and permanent injunction, the High Court of Karnataka dismissed the appeal. The court held that the appellate courts were justified in granting a declaration decree even though the plaintiff was not in possession, citing the Supreme Court's view that a suit for declaration is maintainable as an independent cause of action.

What did the court decide?

The appeal was dismissed, and the judgments and decrees passed by the courts below were confirmed.

Karigowda Vs Smt Karagamma — Property and Title | Karnataka HC (2023)

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1 - NC: 2023:KHC:44421 RSA No. 621 of 2012

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 7^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. 621 OF 2012 (DEC/INJ)

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BETWEEN:

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KARIGOWDA, AGED ABOUT 80 YEARS, S/O. KARIGOWDA, RESIDENT OF MARBALLI HUNDI, JAYAPURA HOBLI, MYSORE TALUK.

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…APPELLANT

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(BY SRI. P.NATARAJU., ADVOCATE)

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AND:

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Digitally signed by R DEEPA Location: High Court of Karnataka

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SMT. KARAGAMMA, AGED ABOUT 75 YEARS, W/O. KALEGOWDA, RESIDING AT GANDHANAHALLI VILLAGE, HOSA AGRAHARA HOBLI, K.R.NAGAR POST, MYSORE DISTRICT - 571 602. …RESPONDENT (BY SRI. SYED AKBA PASHE., ADVOCATE FOR SRI. MAHANTESH S. HOSMATH., ADVOCATE FOR RESPONDENT).

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 16.12.2011 PASSED IN R.A.NO.293/2011 ON THE FILE OF THE III ADDL. DISTRICT JUDGE, MYSORE, DISMISSING THE APPEAL FILED AGAINST

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THE JUDGMENT AND DECREE DATED:23.4.2011 PASSED IN O.S.NO.600/2007 ON THE FILE OF THE II ADDL. SR. CIVIL JUDGE, MYSORE AND ETC.,

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THIS APPEAL, COMING ON FOR ORDERS, 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 16.12.2011, passed in R.A.No.293/2011 by the III Addl. District Judge at Mysore, confirming the judgment and decree dated 23.04.2011 passed in O.S.No.600/2007 by the II Addl. Senior Civil Judge at Mysore.

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For the sake of convenience, parties are referred to as per their ranking before the trial Court. The appellant is the defendant and respondent is plaintiff.

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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, in the alternative for the relief of possession of the suit schedule property. It is the case of

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the plaintiff that the suit schedule property was owned by plaintiff's father by name Karigowda. The said Karigowda had two sons i.e., Maridasegowda and Karigowda i.e., defendant and one daughter by name Karagamma i.e., the plaintiff. The father of the plaintiff is the absolute owner of land bearing Sy.No.342 measuring 4 acres, out of which he had sold 1 acre of land in favour of the plaintiff. Her father and brothers i.e., Maridasegowda and Karigowdadefendant sold said plaint schedule property in favour of plaintiff under registered sale deed dated 20.05.1966. By virtue of registered sale deed the plaintiff had become the

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absolute owner of plaint schedule property and paying kandaya to the Government. Since the plaintiff is illiterate lady, she could not get the khata changed into her name. But subsequently she came to know that as per sale deed, survey number of the suit property is mentioned as Sy.No.241/25, but the real survey number is Sy.No.342. Because of identical name of Mollekarogowda and the plaintiff's father Karigowda, survey number was exchanged, but the boundaries are the same. The land

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purchased by the plaintiff is bounded on East by land of Nanjamma and others, West by Arisinakeregramada Yelle and North by land of Cheluvachari and South by Arasinakeregramada Yelle, At the time of executing the registered sale deed, survey numbers was mentioned as Sy.No.241/25 situated at Marballi, but the actual survey number is Sy.No.342, situated at Marballi. Hence, the boundaries mentioned is same, but survey numbers were different. It is submitted that mistake crept in while drafting the sale deed. Thereafter, 3 acres of land in Sy.No.342 was changed in the name of plaintiff's brother Maridasegowda, but remaining 1 acre of land in Sy.No.342 is changed in favour of Karigowda. The plaintiff came to know about the said wrong entries in the revenue record about 15 days back before filing of the suit. The defendant colluded with the revenue officials, got changed the khata in Sy.No.342 in his name. The defendant has no right, title or interest over the suit schedule property. The defendant taking undue advantage of the above revenue entries and he is trying to interfere with the

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peaceful possession and enjoyment of the plaintiff over the suit schedule property. Hence cause of action arose for the plaintiff to file the suit.

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Defendant filed written statement contending that the suit is not maintainable and there is no cause of action to file the suit. It is contended that the property purchased by the plaintiff is in respect of Sy.No.342 but not in Sy.No.241/25. It is further contended that there is no reference of Sy.No.342 in the registered sale deed and further contended that the registered sale deed executed in favour of plaintiff is not acted upon and the same and is created by the plaintiff. Further it is contended that, the name of plaintiff is not entered in the revenue records. It is the case of the defendant that he is the owner in possession of the suit schedule property and contended that land bearing Sy.No.342 and Sy.No.241/25 are totally different lands. Hence, there is no cause of action to file the suit. On these grounds 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 proves that she is the absolute owner in lawful possession and enjoyment of suit schedule property as on the date of suit?

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1. Whether the plaintiff further proves that the defendant and his family members have interfered with her possession and enjoyment of suit schedule property?

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1. Whether the defendant proves that the suit is not properly valued and the court fee paid is not sufficient?

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

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1. What order and what decree?

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In order to prove the case of the plaintiff, the plaintiff examined herself as PW-1 and got examined two witnesses as PW-2 & PW-3 and got marked 13 documents as Exs.P-1 to P-13 of Power of Attorney. In support of the defence of the defendant, wife of defendant No.1 was examined as DW-1 and also got examined one witness as DW-2 and got marked 32 documents as Exs.D-1 to D-32. The trial Court on assessment of oral and documentary

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evidence has answered issue Nos.1 and 4 partly in affirmative and issue Nos.2 and 3 in negative and consequently decreed the suit of the plaintiff in part. It is ordered and declared that the plaintiff is the absolute owner of the suit schedule property (1 acre of land on the extreme southern side of Sy.No.342, old Sy.No.241/25) and the prayer of the plaintiff for permanent injunction was rejected. However the trial Court directed the defendant to deliver possession of the same within four months from the date of passing the judgment.

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The defendant aggrieved by the judgment and decree passed by the trial Court had preferred an appeal in R.A.No.293/2011 on the file of II Senior Civil Judge, Mysore. The First Appellate Court, after hearing the parties, has framed the following points for consideration:

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1) Whether the plaintiff has proved her title to the suit schedule property?

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2) Whether the plaintiff is entitled for possession of suit schedule property?

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3) Whether the defendant has proved that no land is conveyed by him and his brother and

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father under sale deed dated 19.05.1966 executed in favour of the plaintiff?

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4) Whether the Judgment and Decree passed by the trial Court needs to be set aside or modified?

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The First Appellate Court, on re-assessment of

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the oral and documentary evidence, answered point Nos.1

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and 2 in the affirmative and point Nos.3 and 4 in negative and consequently dismissed the appeal vide judgment dated 16.12.2011. The defendant aggrieved by the judgments and decrees passed by the Courts below has filed the second appeal.

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This court admitted the appeal on the basis following substantial question of law :

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"Having found that the plaintiff is not in possession of the suit schedule property, whether the Courts below are justified in granting the decree for declaration in respect of the said property?"

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Heard learned counsel for the defendant and

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learned counsel for the plaintiff.

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Learned counsel for the defendant submits that

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the suit schedule property claimed by the plaintiff is different from the property possessed by the defendant are different. The plaintiff on the basis of the registered sale deed, is claiming the property of the defendant. He submits that the plaintiff had no right, title or interest over the suit schedule property. It is further submitted that the Courts below have failed to consider the boundaries mentioned in the registered sale deed and the survey records. He further submits that the sale deed alleged to have been executed in favour of plaintiff was not acted upon and the revenue records were not changed in the name of plaintiff. It is contended that the Courts below committed an error in passing the impugned judgments. Hence, on these grounds prays to allow the appeal.

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Per contra, learned counsel for the plaintiff submits that the father of the plaintiff was the absolute owner of land bearing Sy.No.342 measuring 4 acres. Out of 4 acres, 1 acre of land was purchased by the plaintiff

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under the registered sale deed dated 20.05.1966, from her father and brothers. Remaining 3 acres of land was purchased by Maridasegowda i.e., brother of plaintiff and defendant. It is contended that the defendant cannot take u-turn and deny the execution of registered sale deed. He further submits that the plaintiff became the absolute owner of the suit schedule property by virtue of registered sale deed dated 20.05.1966. He further submits that the plaintiff has also pleaded in the plaint that in case Court comes to a conclusion that the plaintiff is not in possession of the property, sought for alternative relief of possession.

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Hence, he submits that both the Courts below were justified in passing the impugned judgments and decrees. Hence, on these grounds prays to dismiss the appeal.

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Perused the records and considered the submissions of learned counsel for the parties.

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Substantial Question of law: It is the case of the plaintiff that land bearing Sy.No.342 was owned and possessed by her father and he sold portion of land to an

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extent of 1 acre in favour of plaintiff for valid consideration and thereafter, plaintiffs father and his brothers namely Maridasegowda and defendant jointly executed registered sale deed in favour of plaintiff on 20.05.1966 and since from the date of purchase, the plaintiff is in possession and enjoyment of the suit schedule property. The plaintiff had produced documents. Ex.P-1 is the certified copy of the registered sale deed executed by father and brothers of the plaintiff in favour of her and in respect of suit schedule property, Ex.P-2 is the RTC extract in respect of land bearing Sy.No.342 stands in the name of father of the plaintiff for the year 1972-73 to 1974-75, Ex.P-3 is the copy of RTC in Sy.No.342 stands in the name of father for the year 1976-77 to 1978-79, Ex.P-4 is the copy of RTC in respect of land bearing Sy.No.342 it is stands in the name of brothers of defendant i.e., Maridasegowda and defendant from 1991-92 till 1995-96, Ex.P-5 is the RTC extract of land bearing Sy.No.342 stands in the name of Maridasegowda and defendant, Ex.P-6 and P-7 are the Index of land, Ex.P-8 is the RTC extract in respect of

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Sy.No.342 standing in the name of Maridasegowda and defendant for the year 1986-1987 till 1990-91, Ex.P-9 is the RTC extracts standing in the name of Maridasegowda, Exs.P-10, P-11, P-12 are the Phasalu Pahani standing in the name of defendant and Ex.P-13 is the Encumbrance certificate issued by the Sub Registrar on 11.04.2005. Nothing has been elicited from the mouth of this witness in regard to the purchase of land from the plaintiff by the father of plaintiff and brothers, i.e., Maridasegowda and defendant. The plaintiff examined Maridasegowda as PW2, who is brother of plaintiff and defendant. He has deposed that previously the suit property was belonged the father and previously plaint schedule property bearing Sy.No.342 was numbered as Sy.No.241/25. He admits that his father, himself and defendant have jointly executed the registered sale deed in favour of plaintiff on 20.05.1966, to an extent of 1 acre of land and handed over the possession of suit schedule property to the plaintiff. A suggestion was put to PW-2 that there was partition between the defendant and PW-2. He admits the

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same and since from the date of partition, both PW-2 and defendant are residing separately and he admits that the entire extent of land bearing Sy.No.342 measures 4 acres. He pleads ignorance that in the said partition, 20 guntas of land was fallen to his share and remaining 2.20 guntas was fallen to the share of defendant and he admits that defendant is paying kandaya in respect of land bearing Sy.No.342 to an extent of 2.20 guntas. A suggestion was put to PW-2 that on the strength of partition, whether the name of plaintiff and defendant was shown in the revenue records. He denied that the defendant had mortgaged the said property and obtained the loan. Further, the plaintiff had also examined one Puttaraju as PW-3. He had deposed that the plaintiff purchased the land bearing Sy.No.342 measuring 1 acre from her father, defendant and his brother Maridasegowda, under registered sale deed dated 20.05.1966 and he owns a land bearing Sy.No.60 and the said land is adjacent to the land of plaintiff. The defendant and his brother Maridasegowda are in possession of 2.20 acres of land and plaintiff in

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possession of 1 acre of land in Sy.No.342 and the plaintiff is personally cultivating the suit land and nothing has been elicited from the mouth of this witness.

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In rebuttal the power of attorney holder of the defendant was examined as DW-1 and she had reiterated the written statement averments in the examination-inchief. DW-1 is none other than the wife of defendant. In the course of cross-examination it is elicited that she does not know as to in which survey number the house is situated. She admits that Sy.No.342 stands in the name of defendant and she does not know about the other survey numbers. She pleads ignorance that the defendant had executed registered sale deed dated 20.05.1966 in favour of plaintiff. Defendant had examined DW-2 in order to prove the possession.

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From the perusal of the records produced by the parties, it is clear that land bearing Sy.No.342 (old No.241/25) was owned and possessed by father of plaintiff and defendant and further the father of the plaintiff,

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defendant and brother of plaintiff i.e., Maridasegowda have executed registered sale deed in respect of land bearing Sy.No.241/25 in favour of plaintiff and the said fact is also admitted by DW-1. Though it is the case of the plaintiff that there is a mistake in the survey number mentioned in the registered sale deed, however, the boundaries shown in the registered sale deed i.e., Ex.P-1 and the boundaries shown in the plaint are one and the same. Further, incase if there is any discrepancy in the survey number, as per Order VII Rule 3 property can be identified either by survey number or by boundaries, i.e., when the subject property is an immovable property, the plaint shall contain the description of the property sufficient to identify it and in case such property is identified by the boundaries or numbers in the record of settlement or survey, the plaint shall specify such boundaries or numbers. Admittedly in the present case, the plaintiff has shown the boundaries mentioned in Ex.P1 in the plaint. The said property is identified by the boundaries. It is not the case of the defendant that the

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boundaries shown in the plaint pertains to the land bearing Sy.No.342. Further, though sale deed was executed in the year 1966, but the name of the plaintiff was not change in the revenue records. However, as per Section 129 of Karnataka Land Revenue Act, when any person acquires a right, title by registered instrument, it is the duty of the

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Sub Register to send the J-Form to the concerned authorities. Merely, because the plaintiff had not submitted an application to change the name in the revenue record, that does not indicate that the plaintiff is not the owner of the suit schedule property. From the perusal of the records, plaintiff had proved that the plaintiff is the absolute owner of suit land measuring 1 acre Sy.No.342 (old Sy.No.241/25).

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Though it is the case of the defendant, that the defendant is in possession of the suit schedule property, the plaintiff has not sought for the relief of possession. Further it is the case of the defendant that the suit filed by the plaintiff for mere declaration without seeking

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consequential relief of possession as per provision of Section 34 of the Specific Relief Act, is not maintainable. From the perusal of the plaint, the plaintiff has specifically stated that she had sought for the relief of injunction, or in the alternative for the relief of possession. The trial Court after considering the material on record had recorded a finding that the defendant is in possession of the property

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and the plaintiff has failed to prove the alleged interference by the defendant. As the plaintiff has prayed for alternative relief of possession, the trial Court has granted alternative relief of possession. Further, the Hon'ble Apex Court in the case of SMT. AKKAMMA AND OTHERS VS. VEMAVATHI AND OTHERS in Civil Appeal No.5884/2009 disposed of on 25.11.2021, has held that "even a suit for declaration is maintainable without seeking for the relief of possession". In view of the law laid down by the Hon'ble Apex Court, the suit filed by the plaintiff is maintainable and Courts below were justified in passing the impugned judgments and decrees. Hence, I do not find any grounds to interfere with the impugned

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judgments and decrees. Accordingly, I answer substantial

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questions of law in the affirmative.

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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 is dismissed.

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The judgments and decrees passed by the

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Courts below are confirmed.

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No order as to the costs.

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In view of disposal of the appeal, pending IA, if any,

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does not survive for consideration and accordingly disposed of.

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SRA

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Sd/JUDGE

Karigowda v. Smt Karagamma

Case brief

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Karigowda v. Smt Karagamma

Case brief

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