Allowed

Sri. Nanje Gowda v. Sri Mayanna Gowda

Karnataka HC14 Feb 2024RSA/1376/2023

Case brief

AI extract

What is this about?

In a suit for rectification of a sale deed regarding land survey numbers, the High Court allowed the regular appeal. It held the first appellate court's decree was perverse for relying solely on an Assistant Commissioner's order without addressing limitation or other facts. The matter is remitted to the Trial Court for evidence.

What did the court decide?

Regular appeal allowed; First Appellate Court judgment set aside; matter remitted to Trial Court with liberty to file written statement and costs ordered.

Sri. Nanje Gowda Vs Sri Mayanna Gowda — Specific Performance | Karnataka HC (2024)

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NC: 2024:KHC:6391 RSA No. 1376 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 14^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. 1376 OF 2023 (DEC/INJ)

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BETWEEN:

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SRI. NANJE GOWDA AGED ABOUT 71 YEARS S/O LATE KARI GOWDA AGRICULTURIST RESIDENT OF KODINAGANAHALLI VILLAGE KOPPA HOBLI-571422 MADDUR TALUK MANDYA DISTRICT.

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…APPELLANT

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(BY SRI. SHASHI KUMAR G V.,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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SRI MAYANNA GOWDA AGED ABOUT 72 YEARS S/O LATE CHIKKALINGAIAH AGRICULTURIST RESIDENT OF KODINAGANAHALLI VILLAGE KOPPA HOBLI,-571422 MADDUR TALUK MANDYA DISTRICT.

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…RESPONDENT

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(BY SRI. B RAMESH.,ADVOCATE)

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGEMENT AND DECREE DATED 19.04.2021 PASSED IN RA NO.101/2019 ON THE FILE OF SENIOR CIVIL JUDGE, MADDUR., ALLOWING THE APPEAL AND SETTING ASIDE THE

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NC: 2024:KHC:6391 RSA No. 1376 of 2023

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JUDGMENT AND DECREE DATED 15.03.2019 PASSED IN OS NO.53/2018 ON THE FILE OF II ADDITIONAL CIVIL JUDGE AND JMFC, MADDUR.

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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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Though the matter is listed for admission, by consent

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of the learned counsel for the parties, matter is taken up for final disposal.

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This appeal is by the defendant/appellant being aggrieved by the judgment and order dated 19.04.2021 passed by the Senior Civil Judge, Maddur (hereinafter referred to as 'First Appellate Court' for short) while allowing the appeal had set aside the judgment and decree passed in O.S.No.53/2018 dated 15.03.2019 on the file of II Additional Civil Judge & JMFC, Maddur (hereinafter referred to as 'Trial Court' for short) which was filed against the appellant herein seeking following reliefs;

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"(a) For declaration, declaring that the plaintiff is the absolute owner in possession and enjoyment of the schedule property as absolute owner there of in Sy.No.134 instead of Sy.No.133/2A.

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(b) Consequential relief directing the defendant to execute Rectification of deed rectifying the mistake crept in respect of Survey Number of the suit schedule property in the sale deed dated 15.08.1978 executed by the deceased father of the defendant in favour of the father of the plaintiff.

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(c) Consequential relief of permanent injunction restraining the defendant or his successors or labours or servants or agents or anybody acting on his behalf from interfering with the peaceful possession and enjoyment of the suit schedule property by the plaintiff."

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Subject matter of the suit is land measuring 4

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guntas bearing Sy.No.133/2A (Correct Sy.No.134) situated at Kowdle Village, Koppa Hobli, Maddur Taluk. Case of the plaintiff is that his father purchased the Sy.No.133/2A measuring 4 guntas of land from the father of the defendant in terms of deed of sale dated 15.08.1978. That at the time of preparation of a survey sketch it was noticed that plaintiff is in possession of Sy.No.134 and not in Sy.No.133/2A. That upon the demise of the father of

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the defendant name of the defendant was mutated in the revenue records in respect of Sy.No.134. Being aggrieved by the same, plaintiff initiated the proceedings before the

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Assistant Commissioner who by his order dated 24.04.2017 in R.Mis.No.246/2014 found that the land conveyed in terms of deed of sale dated 15.08.1978 was indeed in Sy.No.134 and not in Sy.No.133/2A. Based on the same the plaintiff filed a suit in O.S.No.53/2018 seeking aforesaid reliefs.

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Though the defendant had appeared through his counsel had neither filed written statement nor contested the suit. The Trial Court after recording the evidence of the plaintiff and another witness as PW.1 and PW.2 and on consideration of three documents produced at Exs.P1 to P3 found that plaintiff had not produced evidence sufficient enough to justify his claim of property in Sy.No.134 was the one which was conveyed in his favour and not the one in Sy.No.133/2A and consequently dismissed the suit. Being aggrieved by the same, plaintiff preferred regular appeal in R.A.No.101/2019 along with an application under order 41 Rule 27 of CPC seeking to produce additional documents. That defendant/appellant

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herein has been placed exparte by the First Appellate Court. That the First Appellate Court considering the grounds urged in the appeal and also by allowing the application filed under 41 Rule 27 of CPC by the plaintiff, set aside the judgment and decree passed by the Trial Court and eventually decreed the suit as prayed for. Being aggrieved by the same, defendant is before this Court.

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The following substantial question of law is raised for consideration;

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"Whether the First Appellate Court is justified in granting the relief as sought for by the plaintiff directing the defendant to rectify the survey number of the suit property mentioned in the deed of sale dated 15.08.1978 by inserting Sy.No.134 instead of Sy.No.133/2A solely based on the Ex.P2 an order passed by the Assistant Commissioner in the proceedings initiated by the plaintiff under Section 136(2) of the Karnataka Land Revenue Act, 1964 in the case No.R:Mis.246/2014 without adverting to the pleadings of the plaintiff and the issue of limitation?".

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NC: 2024:KHC:6391 RSA No. 1376 of 2023

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Sri.Shashi Kumar G.V, learned counsel for the appellant reiterating the grounds urged in the

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memorandum of appeal submitted that;

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(a) First Appellate Court without taking into consideration of the fact that the plaintiff had not adduced evidence sufficient enough for grant of relief for Rectification of Deed of conveyance as rightly found by the Trial Court, had erred in allowing the appeal directing the defendant to rectify the Sy.No.133/2A of the property subject matter of deed of sale dated 15.08.1978 from Sy.No.133/2A to Sy.No.134.

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(b) First Appellate Court being the court of facts ought to have adverted to all the issues including one with regard to the limitation, in that he submits that sale deed is dated 15.08.1978 and the suit has been filed on 05.02.2018 without there being any explanation whatsoever as to the date on which the plaintiff learnt the discrepancies in the Survey number.

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NC: 2024:KHC:6391 RSA No. 1376 of 2023

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initiated by the plaintiff challenging the revenue entries made in the name of defendant in respect of Sy.No.134 and the order passed by the Assistant Commissioner in the said proceedings is the basis on which the suit is filed. As such, the First Appellate Court ought not to have decreed the suit as the matter pertains to the rights of the parties in respect of immovable property.

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(d) It is his submission that First Appellate Court ought to have independently assessed the evidence even if the defendant had not contested the matter. Thus, he submits that impugned judgment and order suffers perversity requiring substantial question of law to be answered in favour of the defendant/appellant.

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Sri.B.Ramesh, learned counsel for the

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respondent on the other hand justifying the impugned judgment and order submits that First Appellate Court had taken into consideration the order passed by the Assistant

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Commissioner which was passed in this proceedings initiated on account of change of revenue entries that was effected upon the demise of the vendor of the father of the plaintiff. He submits that cause of action for the purpose of filing of the suit ought to be reckoned from the date the Assistant Commissioner had passed the order. Calculated accordingly, the suit was well within time. Thus, he submits that the material relied upon by the First Appellate Court to grant the decree is, the order passed by the Assistant Commissioner, which was passed on 24.04.2017,

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and the suit has been filed just within one year thereafter. Hence, he submits that substantial question of law needs to the answered in favour of the respondent.

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8. Heard. Perused the records.

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It is not in dispute that the father of the defendant had executed the deed of sale dated

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15.08.1978 in favour of the father of the plaintiff conveying an extent of 4 guntas of land purportedly

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NC: 2024:KHC:6391 RSA No. 1376 of 2023

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forming part of Sy.No.133/2A. Case of the plaintiff is that he realized that the said extent of 4 guntas of land conveyed in his favour was indeed formed part of land in Sy.No.134 only, when the mutation entries were effected in the name of the defendant upon the demise of his father. Evidence produced by the plaintiff in support of his contention is the order dated 24.04.2017 passed by the Assistant Commissioner in R.Mis.No.246/2014. The said proceedings were initiated by the plaintiff apparently on account of change of mutation entries whereby the name

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of the defendant was inserted in the revenue records in respect of Sy.No.134 upon the demise of his father. The Trial Court had declined to grant the relief and had dismissed the suit, not being satisfied with evidence produced by the plaintiff. The aforesaid facts and circumstances and the evidence has weighed in the minds of the First Appellate Court to grant the relief of rectification of deed of conveyance as sought for.

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As noted above except producing the order passed by the Assistant Commissioner in a proceedings initiated by the plaintiff himself, no other evidence has been produced in justification of his claim that he was conveyed 4 guntas of land in Sy.No.134 and not in Sy.No.133/2A.

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The matter goes to the root of very identity and existence of immovable property. That too long after the deed of sale having been executed on 15.08.1978. No explanation for filing the suit in the year 2018 except the said order of the Assistant Commissioner is produced. It also has effect on the right, title, interest in respect of immovable property of the parties involved in the matter. It may be that the defendant has not been diligent in prosecuting the matter though he was represented by a counsel before the Trial Court. However, the contention of the defendant is that he was not served with the notice before the First Appellate Court.

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NC: 2024:KHC:6391 RSA No. 1376 of 2023

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Be that as it is. From the records what is emanating is that the Trial Court dismissed the suit for want of cogent and acceptable evidence from the plaintiff and the First Appellate Court decreed the suit based on the order of the Assistant Commissioner alone and nothing else.

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This Court on the holistic reading of the matter is of the considered view that both the plaintiff and the defendant be given an opportunity to adduce additional evidence and present their case in the manner known to law. Such that the real issue in controversy would be adjudicated legally, effectively and finally.

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In that view of the matter, this Court is of the considered view, that judgment and order passed by the First Appellate Court suffers from perversity in that the First Appellate Court could not have decreed the suit merely based on the order passed by the Assistant

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NC: 2024:KHC:6391 RSA No. 1376 of 2023

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Commissioner without adverting to other factual aspects of the matter including the issue of limitation.

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At this juncture, learned counsel for the appellant seeks liberty to file written statement and an opportunity to present his case. Counsel for the

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respondent submits that such liberty be reserved subject to payment of cost. Submission is taken on record.

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In view of the above, following;

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ORDER

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(i) Appeal is allowed.

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(ii) Order dated 19.04.2021 passed in R.A.No.101/2019 by the First Appellate Court is set aside.

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(iii) Matter is remitted back to the Trial Court subject to payment of cost of Rs.10,000/payable to the plaintiff before the Trial Court.

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NC: 2024:KHC:6391 RSA No. 1376 of 2023

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(iv) Parties shall appear before the Trial Court on

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04.03.2024 without any further notice.

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(v) The appellant shall file his written statement within 15 days from 04.03.2024.

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(vi) The Trial Court shall dispose of the matter within an outer limit of one year from the said date after affording sufficient opportunities to the parties to lead their evidence without being influenced by the order passed in this appeal. It is made clear that the opinion expressed in the order is only limited to the order of remand and not on the merits.

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Sd/JUDGE

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Sri. Nanje Gowda v. Sri Mayanna Gowda

Case brief

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Sri. Nanje Gowda v. Sri Mayanna Gowda

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