Dismissed

Nagaraju, v. Sumaya Bhanu

Karnataka HC13 Feb 2024RSA/1215/2023

Case brief

AI extract

What is this about?

The regular second appellant, who was the defendant in the lower court, challenged the confirmation of the trial court's decree favoring the respondent in a suit for permanent injunction and declaration. The appellant argued the court erred in ignoring a cloud in title caused by the original vendor being granted land after the sale. The High Court held that the parties were litigating two distinct

What did the court decide?

Perpetual injunction and declaration in favour of respondent stands confirmed; additional documents application set aside; appeal dismissed.

Nagaraju, Vs Sumaya Bhanu — Partition | Karnataka HC (2024)

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NC: 2024:KHC:6147 RSA No. 1215 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF FEBRUARY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO. 1215 OF 2023 (DEC/INJ)

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BETWEEN:

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NAGARAJU, S/O H S BYRAPPA AGED ABOUT 52 YEARS R/O SRINIVASA NAGAR ARSIKERE TOWN 573 103

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…APPELLANT

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(BY SRI. H S SANTHOSH, ADVOCATE)

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AND:

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Digitally signed by SUMA B N Location: High Court of Karnataka

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SUMAYA BHANU, W/O MUZAMIL EJAZ AGED ABOUT 48 YEARS R/O BANAVARA PETE BANAVARA HOBLI ARSIKERE TALUK 573 112

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(BY SRI. VIJAYA KUMAR K., ADVOCATE)

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…RESPONDENT

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RSA FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 05.04.2023 PASSED IN R.A.NO.15/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., ARASIKERE.,DISMISSING THE APPEAL AND

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NC: 2024:KHC:6147 RSA No. 1215 of 2023

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CONFIRMING THE JUDGMENT AND DECREE DATED 05.01.2019 PASSED IN O.S.NO.341/2009 ON THE FILE OF THE I ADDITIONAL CIVIL JUDGE AND JMFC, ARASIKERE.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,

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THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is by the defendant aggrieved by the Judgment and decree dated 05.01.2019 passed in O.S.No.341/2009 on the file of the I Additional Civil Judge and JMFC, Arasikere which is confirmed by Judgment and order dated 05.04.2023 passed in R.A.No.15/2019 on the file of Senior Civil Judge and JMFC, Arasikere.

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The above suit is filed by the plaintiff/respondent herein for the relief of declaration, permanent injunction, mandatory injunction and also for possession against the appellant/defendant contending that originally Sy.No.446 was granted in favour of Rangaiah, S/o Talavar Subbaiah on 13.08.1981 in terms of the Karnataka Village Offices Abolition Act and said land has been regranted in favour of

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NC: 2024:KHC:6147 RSA No. 1215 of 2023

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Rangaiah. That prior to regrant said Rangaiah sold the suit schedule property in favour of father of the plaintiff in terms of deed of sale dated 09.12.1968 and even delivered vacant possession of the same. Though the property conveyed under the said document was measuring 60 feetx80 feet the measurement mentioned in the said deed was 30 feetx80 feet. As such Rangaiah executed another deed of sale dated 17.08.1970 clearly mentioning the measurement of the property as 60 feetx80 feet. That ever since then father of the plaintiff has been in possession and enjoyment of the suit schedule property and records have been mutated in his name. That upon demise of the father of plaintiff, plaintiff has

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been in continuous possession of the suit property as his only legal heir. The property after change of land usage has been included in the municipal records and defendant having no right, title and interest over the suit property

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has encroached upon the property of the plaintiff by putting up basement structure and when questioned by plaintiff defendant given evasive reply constraining the

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NC: 2024:KHC:6147 RSA No. 1215 of 2023

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plaintiff to file a police complaint and thereafter the present suit for the relief as sought for.

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Defendant filed his written statement denying the plaint averments and specifically contended that the suit of the plaintiff is in respect of land in Sy.No.446 and that he is the owner in possession of land in Sy.No.445. That he has been in possession of his property in Sy.No.445 over 15 years as owner thereof. It is his case that the plaintiff has filed the above suit to knock off the property belonging to the defendant. It is contended that the defendant purchased property in Sy.No.445 in terms of deed of sale dated 11.04.2000 from its previous owner V.Ramesh Babu who in turn has purchased the same from one Siddalingappa. Said Siddalingappa had obtained a decree from the Court in O.S.No.79/1985. It is contended that plaintiff has no right over the property in Sy.No.445 belonging to the defendant. Defendant has constructed his house on the property bearing Sy.No.445/1 and has been in possession of the same. That the description of

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NC: 2024:KHC:6147 RSA No. 1215 of 2023

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the property given by the plaintiff is incorrect and not in

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existence. Hence, sought for dismissal of the suit.

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Trial Court based on the pleadings, framed

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following issues:

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1. Whether the plaintiff proves that she is the lawful owner of suit schedule property?

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2. Whether the plaintiff proves that she is in lawful possession and enjoyment over suit schedule property as on the date of filing the suit?

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3. Whether the plaintiff proves the defendants interference over the suit schedule property?

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4. Whether the defendant proves that suit is not properly valued?

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5. What order or decree?".

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Addl. Issues:

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1. Whether the plaintiff proves that the defendant had laid a foundation in plaint schedule property by encroaching the same?

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2. Whether the plaintiff is entitled for the relief of permanent and mandatory injunction as claimed in plaint?

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3. Whether the plaintiff is entitled for declaration?".

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6 - NC: 2024:KHC:6147 RSA No. 1215 of 2023

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GPA holder of plaintiff is examined as PW-1 and 7 documents marked as Ex.P-1 to P-7. Defendant examined himself as DW-1 and also another witness as DW-2 and 20 documents marked as Ex.D-1 to D-20. On appreciation of pleadings and evidence, the trial Court answered issue No.1 and additional issue Nos.1 to 3 in the affirmative, issue No.4 in the negative and issue Nos.2 and 3 partly in the affirmative. Consequently decreed the suit as sought for. Aggrieved by the same defendant preferred regular appeal in R.A.No.15/2019. Appellant also filed an application under Order 41 Rule 27AA read with Section 151 of CPC seeking to produce additional documents. Considering the grounds urged in the memorandum of appeal and also considering application filed under Order 41 Rule 27AA CPC filed by the appellant, first appellate Court framed following points for its consideration:

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"1. Whether the Trial Court has properly appreciated the law, oral and documentary evidence on record?

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2. Whether the judgment and decree under challenge is perverse, capricious and arbitrary

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NC: 2024:KHC:6147 RSA No. 1215 of 2023

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and such calls for interference at the hands of this court?

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3. Whether the appellant has made out sufficient grounds to allow the application filed under Order 41 Rule 27AA r/w 151 of CPC?

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4. What order?"

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The first appellate Court answered point No.1 in

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the affirmative and point Nos.2 and 3 in the negative and consequently dismissed the appeal confirming the Judgment and decree passed by the trial Court. Aggrieved by the same defendant is before this Court.

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Sri.H.S.Santhosh, learned counsel for the appellant reiterating the grounds in the appeal

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memorandum submitted that trial Court and first appellate Court erred in decreeing the suit solely relying on the

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report of the Commissioner without adverting to the evidence led by the parties. It is his submission that the plaintiff not having proved her title in respect of suit schedule properties ought not to have been granted the relief of declaration. He submits even according to the

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NC: 2024:KHC:6147 RSA No. 1215 of 2023

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plaint averments plaintiff's father purchased the property in the year 1968 and the vendor of the plaintiff's father was granted the land on 13.08.1981. He also submits that since the said aspect of the matter not having been adverted to by the Courts there is a cloud in the title of the plaintiff which ought to have been adverted to and considered by the trial Court and first appellate Court. It

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is his further submission that finding of the Commissioner that the defendant has put up structure measuring 40 feetx40 feet in the property belonging to the plaintiff is erroneous as plaintiff is claiming in Sy.No.446 and defendant is claiming his property in Sy.No.445. Thus, he submits that the matter gives raise to question of law requiring consideration at the hands of this Court.

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Per contra, Sri.Vijaya Kumar, learned counsel for respondent justifying the Judgment and decree passed by the trial Court confirmed by the first appellate Court submits that defendant in his written statement specifically contended that property claimed by the defendant is

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different property from that of the property claimed by plaintiff. Learned counsel for respondent also takes this Court through the deposition of DW-1 and also deposition of PW-1 in which suggestion has been made to the said witness that defendant is putting up construction in the property belonging to the plaintiff. Thus, he also submits that since the defendant admittedly not making any claim in the property belonging to the plaintiff he has no grounds to be urged opposing claim of the plaintiff. He submits that no error can be found with the reasoning arrived at by the first appellate Court and seeks for dismissal of the appeal.

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9. Heard and perused the records.

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There is no dispute of the fact that the plaintiff is claiming her right in respect of the property which forms part of land bearing Sy.No.446 said to have been

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purchased by her father in terms of deed of sale dated 09.12.1968 from its earlier vendor. On the other hand

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10 - NC: 2024:KHC:6147 RSA No. 1215 of 2023

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defendant is claiming his right over property forming part of land bearing Sy.No.445 which he claims to have purchased from one V.Ramesh Babu in terms of deed of sale dated 11.04.2000. Thus, there is a mark difference of pleading and counter pleading by the parties in that plaintiff is claiming property in Sy.No.446 while defendant claims right in property in Sy.No.445. It is not the case of

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the defendant that he is claiming his right over the property belonging to the plaintiff. The deposition of PW-1 and line of suggestion put forth to PW-1 as extracted by

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the trial Court in its Judgment while answering issue Nos.1 and 2 indicate that there was no confusion in the mind of the parties that they are litigating in respect of two different properties. A suggestion is made to PW-1 on behalf of the defendant that PW-1 had given representation to Arasikere Pura Sabhe alleging that defendant was putting up construction in her property. Further suggestion is also made that there was a response to the said representation stating that defendant was putting up construction in his property. That apart from

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NC: 2024:KHC:6147 RSA No. 1215 of 2023

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the pleading it is clear that even during the trial the parties were clear that they are litigating and claiming two different properties.

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Commissioner who was appointed by the trial Court in his report has submitted that property being claimed by the plaintiff is in Sy.No.446 and property claimed by defendant is in Sy.No.445. That the said properties are separated by 40 feet wide municipal road. The Commissioner has also found that there is a structure measuring 40x40 feet in the property claimed by the plaintiff. The finding of the Commissioner has not been seriously disputed. The case of the appellant is that trial Court and first appellate Court have passed Judgment solely based on the report of the Commissioner cannot be countenanced for the reason that it is not the case of the defendant he has any right, title and share in the property claimed by the plaintiff. Pleadings, evidence and also the report of the Commissioner has indicated that the defendant has put up structure measuring 40x40 feet

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NC: 2024:KHC:6147 RSA No. 1215 of 2023

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which is found to be existing in the property being claimed by the plaintiff. Though defendant claimed his right in Sy.No.445 he does not dispute structure existing in Sy.No.446 suggesting requirement of granting injunction as sought for, by the trial Court confirmed by the first appellate Court. In that view of the matter the facts having been found by trial Court and first appellate Court in favour of the plaintiff cannot be found fault with. No substantial question of law would arise for consideration, appeal is accordingly dismissed.

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Sd/JUDGE

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SBN

Nagaraju, v. Sumaya Bhanu

Case brief

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Nagaraju, v. Sumaya Bhanu

Case brief

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