Dismissed

Shivashankar S/O Nagalingappa v. Jayanand S/O Shidramappa Kori

Karnataka HC5 Jun 2024RSA/200114/2016

Case brief

AI extract

What is this about?

This regular second appeal challenges the first appellate court's decree granting possession to the plaintiff. The court upheld the finding that an agreement of sale does not create possessory title sufficient to deprive an owner of possession, dismissing the appeal.

What did the court decide?

The regular second appeal is dismissed and the judgment and decree of the first appellate court are confirmed.

Shivashankar S/O Nagalingappa Vs Jayanand S/O Shidramappa Kori — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC-K:3607 RSA No. 200114 of 2016

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IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH

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DATED THIS THE 5^TH DAY OF JUNE, 2024 BEFORE

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THE HON'BLE Mrs JUSTICE K S HEMALEKHA

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REGULAR SECOND APPEAL NO.200114 OF 2016 (POSS)

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BETWEEN:

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SHIVASHANKAR S/O NAGALINGAPPA KHYATAPPANAVAR AGE: 65 YEARS, OCC: BUSINESS, R/O. KORI CHAWL, STATION BACK ROAD VIJAYAPUR, NOW AT NEAR A.P.M.C GATE VIJAYAPUR.

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…APPELLANT

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(BY SRI VINAYAK APTE, ADVOCATE)

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AND:

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Digitally signed by SWETA KULKARNI Location: High Court of Karnataka

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JAYANAND S/O SHIDRAMAPPA KORI AGE: 68 YEARS, OCC: BUSINESS, R/O. NOW RESIDING AT SIDDANARAJANA GURURAJ COLONY, OPP: ADARSH NAGAR, ASHRAM ROAD, VIJAYAPUR-586 101.

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(RESPONDENT SERVED)

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…RESPONDENT

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THIS RSA IS FILED U/S 100 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED: 17.12.2015 PASSED BY THE I ADL. DISTRICT JUDGE AT VIJAYAPUR, IN REGULAR APPEAL NO.197/2012, AND CONSEQUENTLY DISMISSED THE SUIT OF RESPONDENT.

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

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NC: 2024:KHC-K:3607 RSA No. 200114 of 2016

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JUDGMENT

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The present second appeal by the defendant assailing the judgment and decree dated 17.12.2015 in R.A.No.197/2012 on the file of the I-Additional District

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Judge, Vijayapur [hereinafter referred to as ‘the first appellate Court’ for short], whereby, the first appellate Court, by the impugned judgment and decree, set aside the judgment and order dated 07.11.2012 in O.S.No.243/2006 on the file of the Principal Senior Civil Judge, Vijayapur [hereinafter referred to as ‘the Trial Court’ for short] and decreed the suit of the plaintiff for possession.

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The parties are referred to as per their ranking before the Trial Court for the sake of convenience.

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Suit for possession in respect of the suit property consisting of three rooms situated out of CTS No.1163/1 of Ward No.III of Vijayapur city. The plaintiff contended that the grand father of the plaintiff Malakappa purchased the said property in the year 1936 and in the

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3 - NC: 2024:KHC-K:3607 RSA No. 200114 of 2016

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partition in the family properties, including the building in CTS No.1163 during the year 1962, CTS No.1163 was

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divided into four parts out of which CTS No.1163/1 consisting of about 14 tenants, godown and open space. The defendant is in occupation of the suit property since 1978. The father of the plaintiff namely Sidramappa Malakappa Kori was looking after the property bearing CTS No.1163/1 and the plaintiff and his father were not in good terms and there was an agreement, as per the agreement plaintiff was to manage his family out of agriculture income and his father was to manage himself and his wife out of the rent received from the tenants. It is stated that the mother of the plaintiff predeceased his father and his father died on 06.04.1999 leaving behind the plaintiff as the sole legal heir. It is the case of the plaintiff that the defendant is the tenant of the suit property and filed an eviction petition in HRC No.5/2000 as the defendant committed default in payment of rent and so also the suit property was in a dilapidated condition. Pursuant to the summons in HRC No.5/2000, the defendant appeared and

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4 - NC: 2024:KHC-K:3607 RSA No. 200114 of 2016

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filed written statement contending that the plaintiff’s father had inducted him in the suit property as a tenant.

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The suit property was mortgaged in his favour by the father of the plaintiff taking Rs.4,001/-. The defendant further contended that during the year 1996 father of the plaintiff had entered into contract of sale selling the suit property for a consideration of Rs.90,000/- out of which Rs.80,000/- has been paid as earnest money to the father of the plaintiff. The defendant contended that after payment of the mortgage amount of Rs.4,001/-, he has been entered into an agreement of sale dated 02.05.1996 and he is in possession of the suit property as prospective purchaser after redemption of the mortgage. Subsequently, under HRC No.5/2000, the plaintiff filed application seeking to withdraw the petition with liberty to file a suit. Accordingly, the petition was dismissed as withdrawn.

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Pursuant to the suit summons, the defendant appeared and filed his written statement inter alia

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5 - NC: 2024:KHC-K:3607 RSA No. 200114 of 2016

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contending that he is in possession of the property as a mortgagee since 1978 and thereafter as an intending purchaser from 02.05.1996 having agreed to purchase the suit property by an agreement of sale and he has paid an earnest money of Rs.80,000/-. The defendant claims that he is in possessory title and that the plaintiff is not owner of the suit property. The suit of the plaintiff is not tenable and stated that the plaintiff has to file a suit for declaration of title over the suit property.

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The Trial Court, on the basis of the pleadings,

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framed the following issues:

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“ISSUES

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Whether plaintiff is proves is the owner of the suit property?

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Whether plaintiff is entitled to recover possession of suit property?

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Whether the plaintiff proves that father of plaintiff has agreed to sell the suit property on 2.05.1996 under sale agreement?

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Whether the suit is bad for non-joinder of necessary party?

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Whether the defendant proves that suit is time barred?

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What order or decree?”

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6 - NC: 2024:KHC-K:3607 RSA No. 200114 of 2016

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In order to substantiate their claim, the plaintiff

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examined himself as PW-1 and got marked documents at

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Exs.P-1 to P-7. On the other hand, the defendant examined himself as DW-1 and two witnesses as DW-2 and DW-3 and got marked documents at Exs.D-1 to D-7.

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The Trial Court, on the basis of the pleadings, oral and documentary evidence, arrived at a conclusion that:

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(i) the plaintiff is not entitled for recovery of possession of the suit property and plaintiff failed to prove that he is entitled for recovery of possession of the suit property;

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(ii) that there was an agreement of sale executed

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by the father of the plaintiff on 02.05.1996 and that the plaintiff has proved that the father of the plaintiff has agreed to sale the suit property on 02.05.1996

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and by the judgment and decree, dismissed the suit of the plaintiff.

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7 - NC: 2024:KHC-K:3607 RSA No. 200114 of 2016

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Aggrieved by the same, the plaintiff preferred

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an appeal before the first appellate Court. The first appellate Court, while re-appreciating the entire oral and documentary evidence, reversed the judgment and decree

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of the Trial Court and held that the plaintiff is entitled for the decree of possession and set aside the order of the Trial Court. Aggrieved by the decreetal of the suit of the plaintiff, the defendant is before this Court.

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Heard Sri Vinayak Apte, learned counsel appearing for the appellant. Though the respondent has been served, he has chosen to remain absent.

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The challenge before this Court is against the divergent findings of the courts below. The undisputed facts are that the father of the plaintiff was owner of the suit property. The plaintiff having lost in HRC No.5/2000, has filed present suit for possession from the defendant. The defendant set up a defence that he is in possession of the property by way of mortgage and also by way of an

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8 - NC: 2024:KHC-K:3607 RSA No. 200114 of 2016

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agreement of sale executed by the plaintiff’s father on 02.05.1996. The fact remains that the defendant had also

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filed a suit for specific performance of contract based on an agreement of sale dated 02.05.1996 and the said suit has been dismissed on 07.11.2012. No appeal has been preferred against the judgment and decree of the dismissal of the suit for specific performance. The possession of the property by way of agreement of sale does not create any right over the suit property. The plaintiff, who is the owner of the property, is entitled to claim possession in accordance with law. The Trial Court has misdirected itself in arriving at a conclusion that in a suit for possession, the title of the defendant has been determined under the agreement of sale, without considering that, in agreement of sale the party can be in possession of the property but cannot deprive the actual owner from taking the possession of the suit property in accordance with law. The first appellate Court, being the last fact finding Court, has rightly re-appreciated the entire oral and documentary evidence and has held that

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9 - NC: 2024:KHC-K:3607 RSA No. 200114 of 2016

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there cannot be a possessory title in favour of the defendant and continue in possession and denying the legal remedy available to the plaintiff which is by filing of the present suit. Keeping in mind the proposition of law, the first appellate Court has rightly reversed the judgment and decree of the Trial Court and the manner in which the first appellate Court has dealt with the entire oral and documentary evidence, this Court is of the considered view that the same does not warrant any interference by this Court and no substantial question of law arises for consideration.

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Accordingly, this Court pass the following:

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ORDER

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(i) The Regular Second appeal is hereby dismissed.

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(ii) The judgment and decree of the first appellate Court stands confirmed.

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Sd/JUDGE

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SWK

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List No.: 1 Sl No.: 31 CT: VD

Shivashankar S/O Nagalingappa v. Jayanand S/O Shidramappa Kori

Case brief

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Shivashankar S/O Nagalingappa v. Jayanand S/O Shidramappa Kori

Case brief

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