Dismissed

Devegowda S/O Chikkarachegowda v. Belwadi Grama Panchayathi

Karnataka HC31 Oct 2023RSA/712/2012

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a second appeal regarding a declaration of title and permanent injunction. The court held that the appellant failed to prove adverse possession and rejected an application for additional evidence intended to fill lacunae in the record.

What did the court decide?

The second appeal was dismissed, judgments and decrees of courts below were confirmed, and the application for additional evidence was rejected.

Devegowda S/O Chikkarachegowda Vs Belwadi Grama Panchayathi — Partition | Karnataka HC (2023)

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1 - NC: 2023:KHC:38642 RSA No. 712 of 2012

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 31^ST DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE ASHOK S.KINAGI

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REGULAR SECOND APPEAL NO. 712 OF 2012 (DEC/INJ)

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BETWEEN:

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DEVEGOWDA S/O CHIKKARACHEGOWDA DEAD BY HIS LR'S

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1(A). SMT. NINGAMINA AGED ABOUT 70 YEARS W/O LATE SRI. DEVEGOWDA

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1(B). SRI. PUTTA SWAMY AGED ABOUT 50 YEARS S/O LATE SRI. DEVEGOWDA

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Digitally signed by SUNITHA GANGARAJU Location: High Court of Karnataka

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1(C). SMT. SHARADA AGED ABOUT 48 YEARS W/O LATE SRI. HANUINANTHA D/O LATE SRI. DEVEGOWDA

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1(D). SMT. SUNITHA AGED ABOUT 46 YEARS W/O SRI. ESHWAR D/O LATE SRI. DEVEGOWDA

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1(E) SMT. JAYALAKSHMI AGED ABOUT 44 YEARS W/O SRI. NARSHIMEGOWDA D/O LATE SRI. DEVEGOWDA

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2 - NC: 2023:KHC:38642 RSA No. 712 of 2012

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1(F) SRI. SRIRAM AGED ABOUT 41 YEARS S/O LATE SRI. DEVEGOWDA

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ALL ARE R/OF SAHUKARAHUNDI VILLAGE YELWALA HOBLI MYSORE TALUK.

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…APPELLANTS

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(BY SRI. S M BABU, ADVOCATE)

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AND:

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BELWADI GRAMA PANCHAYATHI MYSORE TALUK, REPRSENTED BY ITS SECRETARY MYSURU

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SIDDEGOWDA DEAR BY HIS LR"S

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2(A) RAJANNA S/O LATE SIDDEGOWDA DEAD BY HIS LR'S

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2(A1) SMT. BHAGYAMMA W/O LATE RAJANNA AGED ABOUT 50 YEARS

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2(A2) SRI. RAVI S/O LATE RAJANNA AGED ABOUT 28 YEARS

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2(A3) SRI. YOGESH S/O LATE RAJANNA AGED ABOUT 28 YEARS

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2(A4) SRI. BALU S/O LATE RAJANNA AGED ABOUT 26 YEARS

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ALL ARE R/O

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3 - NC: 2023:KHC:38642 RSA No. 712 of 2012

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SAHUKARAHUNDI VILLAGE YELWALA HOBLI MYSORE TALUK MYSURU.

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2(B). SIDDEGOWDA S/O LATE SIDDEGOWDA AGED ABOUT 47 YEARS R/O SAHUKARAHUNDI VILLAGE, YELWALA HOBLI, MYSORE TALUK

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2(C). SIDDEGOWDA S/O LATE SIDDEGOWDA AGED ABOUT 57 YEARS R/O SAHUKARAHUNDI VILLAGE, YELWALA HOBLI, MYSORE TALUK, MYSURU.

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2(D). CHANNAJAMMA W/O SOMEGOWDA AGED ABOUT 52 YEARS D/O LATE SIDDEGOWDA R/O BELAGOLA VILLAGE SRIRANGAPATNA TALUK MANDYA DISTRICT, MANDYA

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2(E). SMT. SARASWATHI W/O MERAVEGOWDA AGED ABOUT 50 YEARS D/O LATE SIDDEGOWDA R/O D.NO. 112, THIBBADEVI NILAYA VIVEKANANDA NAGAR, MYSORE

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…RESPONDENTS

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[BY SMT. VARSHA J. SHETTY, ADVOCATE FOR SRI. MANMOHAN P N, ADVOCATE FOR R2(C-E) R1, R2-A(1) TO R2-A(4) & R2(B) ARE SERVED]

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST

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THE JUDGMENT AND DECREE DATED 13.12.2011 PASSED IN

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NC: 2023:KHC:38642 RSA No. 712 of 2012

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R.A.NO.267/2010 ON THE FILE OF THE DISTRICT JUDGE AND SESSIONS FAST TRACK COURT-III, MYSORE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 11.09.2008 PASSED IN O.S.NO.255/1995 ON THE FILE OF THE II CIVIL JUDGE (JR.DVN) AND JMFC., MYSORE.

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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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This second appeal is filed by the appellants challenging the judgment and decree dated 13.12.2011, passed in R.A.No.267/2010 by the District and Sessions Judge, Fast Track Court III, Mysuru, confirming the judgment and decree dated 11.09.2008 passed in O.S.No.255/1995 by the II Additional Civil Judge, (Jr.Dn.) Mysuru.

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For the sake of convenience, parties are referred

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to as per their ranking before the trial Court. The appellant is the plaintiff and respondents are the defendants.

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5 - NC: 2023:KHC:38642 RSA No. 712 of 2012

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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. It is the case of the plaintiff that plaintiff is the absolute owner of the suit schedule property i.e., the property bearing khata No.29 measuring 20 X 35 feet situated at Sahukarhundi village, Yelwala Hobli, Mysuru. It is contended that ancestors of the plaintiff were in possession and enjoyment of the suit schedule property for more than 70 years without any interruption of anybody and hence the revenue records stands in his name and he is paying the tax for said property. It is further contended that the plaintiff has been enjoying the suit schedule property with exclusive physical possession and thereby perfected title thereto by adverse possession. On 25.08.1995, defendant No.1 passed a resolution for change of khatha with respect to the suit property in the name of defendant No.2 and the said resolution was stayed by the Chief Executive Officer of Zilla Panchayath, Mysore. It is contended that, defendant No.2 tried to

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6 - NC: 2023:KHC:38642 RSA No. 712 of 2012

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dispossess the plaintiff from suit property and demolished a portion of his house with an intention to interfere in the possession with regard to suit property. Hence, the plaintiff filed the suit for declaration of title and permanent injunction.

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Summons was issued to defendant No.1. Inspite of service of summons, defendant No.1 remained absent and was placed exparte. Defendant No.2 filed the written statement denying the title of the plaintiff over the suit schedule property. It is also denied that plaintiff is in possession of the suit schedule property. It is the case of the defendants that there is public road between the suit schedule property and plaintiff's house, while the plaintiff was a member of Hinkal Mandal Panchayath, got created the records in respect of suit schedule property and filed the suit by taking undue advantage of the documents and boundaries shown in the plaint schedule which do not pertain to khata No.29. Hence, it is contended that house of defendant No.2 is abutting the suit schedule property on

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7 - NC: 2023:KHC:38642 RSA No. 712 of 2012

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the left side; the suit schedule property khata number is 31 and it is his ancestral property and the remaining site is abutting to his house. It is contended that there is no cause of action to file the suit and the plaintiff under the wrong impression that the suit property is a portion of khatha No.29 has filed this suit with an intention to knock

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off the suit property. Hence, 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 he acquired title by way of adverse possession?

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2. Whether the plaintiff proves the alleged interference of defendant?

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3. Whether the plaintiff is entitled for the suit claim?

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4. What order or decree ?

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In order to prove the case of the plaintiff, the plaintiff examined himself as PW-1 and got marked 6 documents as Exs.P1 to P6. Defendant No.2 was examined himself as DW-1 and got marked 11 documents as Exs.D1

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8 - NC: 2023:KHC:38642 RSA No. 712 of 2012

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to D11. The trial Court after considering the oral and documentary evidence of the parties, answered issue Nos.1 to 3 in the negative and consequently dismissed the suit of the plaintiff vide judgment dated 11.09.2008.

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The plaintiff, aggrieved by the judgment and decree passed by the trial Court, preferred an appeal in R.A.No.267/2010 on the file of District and Sessions Judge, Fast Track Court III, Mysuru.

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The First Appellate Court, after hearing the

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parties, has framed the following points for consideration:

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1. Whether the trial Judge went wrong in holding that appellant/plaintiff failed to prove his title over the suit schedule property by adverse possession?

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2. Whether the impugned judgment and decree of the trial Court calls for interference?

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3. What order ?

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The First Appellate Court, on re-appreciating the

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oral and documentary evidence, answered point Nos.1 and

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2 in the negative and consequently dismissed the appeal

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9 - NC: 2023:KHC:38642 RSA No. 712 of 2012

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filed by the defendants, confirming the judgment and decree passed by the trial Court. The plaintiff, aggrieved by the judgments and decrees passed by the Courts below, has filed this second appeal.

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Heard learned counsel for the plaintiff.

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Learned counsel for the plaintiff submits that plaintiff is in possession of the suit schedule property. He submits that the trial Court has committed an error in not considering the documents produced by the plaintiff. He submits that ancestors were in possession of the suit schedule property since more than 70 years without any interruption by anybody. Hence, the plaintiff become the absolute owner by way of adverse possession. Therefore, he submits that the Courts below have committed an error in passing the impugned judgments and decrees. Hence, on these grounds, he prays to allow the appeal.

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Perused the records and considered the

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submissions of learned counsel for the plaintiff.

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10 - NC: 2023:KHC:38642 RSA No. 712 of 2012

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The plaintiff examined himself as PW.1 and he

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has deposed that plaintiff's ancestors were in possession of the suit schedule property. After the death his father, the plaintiff is in possession of the suit schedule property. Since the plaintiff and his ancestors are in possession of the suit schedule property for more than 70 years without any interruption, the plaintiff has perfected his title by way of adverse possession. Defendant No.2 is owner of the adjacent property. It is contended that defendant No.2 is interfering into the peaceful possession and enjoyment of the plaintiff over the suit schedule property. The plaintiff in order to establish his case, produced documents Exs.P.1 and 2 are the tax paid receipts in respect of khata No.28 and khata No.29; Ex.P.3 is the notice; Exs.P.4 and 5 are letters and Ex.P.6 is the mahazar drawn by the Court Commissioner. Further, the plaintiff except producing tax paid receipts has not produced any other records to show that plaintiff is in possession of the suit schedule property bearing khata No.29. In rebuttal, defendant No.2 was

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11 - NC: 2023:KHC:38642 RSA No. 712 of 2012

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examined as DW.1 and he has reiterated the written statement averments in the examination-in-chief and produced the documents Ex.D.1 is Demand register extract in respect of khata No.31; Ex.D2 is the letter issued by Gram Panchayath Secretary; Ex.D.3 is plan; Ex.D4 is the resolution copy; Exs.D.5 and 6 are the tax paid receipts in respect of the property bearing khata No.31; Ex.D.7 is the license issued by the Panchayath to the defendant No.2 to put up construction of coffee shed in the suit property as per Ex.D3; Ex.D8 is the notice; Ex.D9 and Ex.D11 are the photographs and Ex.D9(a) to 11(a) are the negatives.

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During the pendency of the suit, the application was filed by the plaintiff for appointing a Court Commissioner. The Court Commissioner was appointed to visit and measure the disputed property and submit a report. The Court commissioner executed the commission work and submitted the report. The commissioner's report is against the plaintiff. The plaintiff neither choose to file

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12 - NC: 2023:KHC:38642 RSA No. 712 of 2012

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the objections to Commissioner's report nor cross examined the Court commissioner. The plaintiff has accepted the Commissioner's report. From the perusal of the Commissioner's report, it discloses that the plaintiff is not in possession and enjoyment of suit schedule property bearing khata No.29. Though the plaintiff is claiming the ownership of the property bearing khata No.29 on the plea of adverse possession, in order to claim the plea of adverse possession, the plaintiff must admit the title of the defendants. In the instant case, admittedly, the plaintiff has denied the title of the defendants. The plaintiff has failed to prove the ingredients of adverse possession. i.e., (i) The date of possession (ii) The possession was known to the public (iii) The nature of the possession (iv) The continuity of the possession (v) The duration of the possession. All these requirements are not pleaded in the plaint. Hence, plaintiff cannot claim the plea of adverse possession against the defendants unless and until admits the title of defendants. The Courts below have considered the evidence on record and also commissioner's report and

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13 - NC: 2023:KHC:38642 RSA No. 712 of 2012

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held that the plaintiff is not in possession of the suit schedule property. The Courts below were justified in passing the impugned judgments and decrees.

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The plaintiff had filed an application for production of additional evidence. In support of the application, one of legal representatives of the plaintiff has filed an affidavit contending that original plaintiff was prosecuting the case and after his death, the legal representatives came to know about the case and the learned counsel representing them, informed them to get other documents available in respect of the property. Therefore, they searched and found documents along with the latest tax paid receipts and the same was handed over to the counsel during 3^rd week of July 2023. It is contended that said documents goes to the root of the case and it is further contended that defendant No.2 without valid ownership is interfering with the possession of the suit and prayed to allow the application.

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14 -

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NC: 2023:KHC:38642 RSA No. 712 of 2012

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Perused the documents produced by the plaintiff. Document No.1 produced by the appellants are Demand Register for the year 2012-13 and document No.2 is a Form-9 which was issued on 06.07.2016 and document No.3 is a Form- 11(a) issued on 06.07.2016 and document Nos.4 is certificate issued by Gram Panchayath dated 01.03.2016 and document No.5 is the tax paid receipts in respect of site bearing khata No.29 dated 01.08.2012 and 06.03.2016 and document No.7 is the tax paid bank challans dated 09.03.2023, paid on 16.03.2023. From the perusal of the said records, the said records came into existence during the pendency of this appeal. Even from the perusal of the said records it does not disclose that either the plaintiff or his legal representatives are in possession of the suit schedule property. The Court is required to consider the possession of the plaintiff as on the date of filing the suit, in order to substantiate the case of the plaintiff, neither the plaintiff nor his legal representatives have produced any records to show that

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15 - NC: 2023:KHC:38642 RSA No. 712 of 2012

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as on the date of filing the suit, the plaintiff was in possession of the suit schedule property.

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Further, the appellants have filed this application with an intention to fill up the lacuna. The Hon'ble Apex Court in the case of N. Kamalam Vs. Ayyasamy , reported in (2001) 7 SCC 503 , held that the additional evidence cannot be produced to fill up the lacuna or gaps in evidence or to patch up the evidence in the appeal and said application filed by the appellants only with an intention to fill up the lacuna. Further, the appellants have not explained why the said documents are not produced before the trial Court. From the perusal of the application, I.A.No.1/2023 the appellants have not fulfilled the requirements of Order 41 Rule 27 of CPC. Hence, the application filed by the appellants for production of documents is to be rejected. Hence, I do not find any substantial question of law that arise for consideration in this appeal and any grounds to interfere with the impugned judgments.

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NC: 2023:KHC:38642 RSA No. 712 of 2012

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Accordingly, 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 Courts below are hereby confirmed. I.A.No.1/2023 is dismissed. No order as to the costs.

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In view of disposal of the appeal, I.A.No.1/2023

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pending I.As, if any, do not survive for consideration and are accordingly disposed of.

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SD/JUDGE

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SKS

Devegowda S/O Chikkarachegowda v. Belwadi Grama Panchayathi

Case brief

What is this about?

What did the court decide?

Devegowda S/O Chikkarachegowda v. Belwadi Grama Panchayathi

Case brief

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What did the court decide?

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