Dismissed

Smt Prema v. Kausalya

Karnataka HC17 Sept 2024RSA/2213/2018

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed an appeal preferred by the plaintiff challenging the First Appellate Court's order setting aside part of the Trial Court's decree. The Court found no perversity in the lower appellate court's re-appreciation of evidence regarding property possession and ownership, holding the appeal failed at the admission stage.

What did the court decide?

Regular Second Appeal dismissed at the stage of admission owing to absence of substantial question of law.

Smt Prema Vs Kausalya — Property and Title | Karnataka HC (2024)

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1 - NC: 2024:KHC:37867 RSA No. 2213 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 17^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE E.S.INDIRESH

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REGULAR SECOND APPEAL NO.2213 OF 2018 (DEC/INJ)

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BETWEEN:

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SMT. PREMA W/O LATE CHANDRASHEKAR, AGED 63 YEARS, AGRICULTURIST, R/O NO.4-218, AKASH BHAVAN, KAVOOR, WARD NO.18, MANGALORE-575015

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…APPELLANT

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(BY SRI SAIPRAKASH V S, ADVOCATE FOR SRI SACHIN B S, ADVOCATE)

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AND:

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Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA

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KAUSALYA

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SINCE DEAD BY LRS,

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SMT. SHAYAMALA, AGED ABOUT 53 YEARS, W/O KRISHNAN KUTTI, D/O LATE KAUSALYA, CHAKKARKAL, KANNUR, KERALA-670001

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JAYAPRASAD

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S/O LATE KAUSALYA LATE UNNIKRISHNA, AGED ABOUT 55 YEARS,

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2 - NC: 2024:KHC:37867 RSA No. 2213 of 2018

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R/AT DOOR NO.4-218, AKASH BHAVAN, KAVOOR, MANGALORE-575015.

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…RESPONDENTS

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(BY SRI RAVISHANKAR SHASTRY G, ADVOCATE FOR C/R2)

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THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE JUDGEMENT DECREE DTD 20.09.2018 PASSED IN R.A.NO. 17/2014 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE, MANGALURU, D.K., AND ETC.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE E.S.INDIRESH

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ORAL JUDGMENT

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This appeal is preferred by the plaintiff challenging the judgment and decree dated 20.09.2018 in R.A.No.17/2014 on the file of the III Additional Senior Civil Judge, Mangaluru, D K allowing the appeal filed by the defendants and as such, set aside the judgment and decree dated 31.10.2013 in O.S.No.8/2011 on the file of the III Additional Civil Judge and JMFC, Mangaluru, D.K. decreeing the suit of the plaintiff in part.

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3 - NC: 2024:KHC:37867 RSA No. 2213 of 2018

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For the sake of convenience, the parties in this

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appeal shall be referred to in terms of their status and ranking before the Trial Court.

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It is the case of the plaintiff that the suit schedule property has been granted by the Government to defendant No.1 under Ashraya Scheme and the same is a ‘A’ schedule property and its southern side, there exists a residential house bearing Door No.4/218 in Sy.No.84/1P1 of Kavoor village of Mangalore taluk. The said land belongs to the Government. The property in which the plaintiff is residing is described as ‘B’ schedule property and the husband of the plaintiff had constructed a house in the ‘B’ schedule property and as such, the plaintiff is residing in ‘B’ schedule property without any claim made by the Government or the defendants. Accordingly, the plaintiff has filed the suit in O.S.No.8/2011 seeking, relief of declaration and permanent injunction against the defendants.

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On service of notice, defendants appeared and

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admitted in the written statement that the ‘A’ schedule property has been granted by the Government under Ashraya Scheme to the defendants. However, denied that the southern side of the ‘A’ schedule property, there exists a residential house as stated in the plaint. Accordingly, the defendants sought for dismissal of the suit. It is also stated in the written statement that defendant No.1 has filed an application before the Government seeking grant of Hakku Patra under Ashraya Scheme and as per the order dated 08.08.1996, the Deputy Commissioner, D.K. District has granted the land in favour of defendant No.1 under Ashraya Scheme and as such, the defendants denied the averments made in the plaint that the husband of plaintiff had constructed the house and they are in possession of the southern side of the ‘A’ schedule property.

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The Trial Court, based on the pleadings, formulated the Issues for its consideration.

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5 - NC: 2024:KHC:37867 RSA No. 2213 of 2018

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In order to establish their cases, the plaintiff

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has examined two witnesses as PW1 and PW2 and produced eight documents and same were marked as Ex.P1 to P8. The defendants have not adduced any evidence before the Trial Court.

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The Trial Court, after considering the material available on record, by its judgment and decree dated 31.10.2013 decreed the suit in part and declared that the plaintiff is the owner of the residential house situated in the ‘A’ schedule property and as such, restrained the defendants from interfering with the suit schedule property. Being aggrieved by the same, the defendants have preferred an appeal in R.A.No.17/2014 before the First Appellate Court and the same was resisted by the plaintiff. The First Appellate Court after re-appreciating the material available on record by its judgment and decree dated 20.09.2017 allowed the appeal and as such, set aside the judgment and decree dated 31.10.2013 in

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6 - NC: 2024:KHC:37867 RSA No. 2213 of 2018

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O.S.No.8/2011. Being aggrieved by the same, the plaintiff

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has preferred this appeal.

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Heard Sri Saiprakash V S, learned counsel appearing for the appellant and Sri Ravishankar Shastry, learned counsel appearing for respondent No.2.

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It is submitted by the learned counsel appearing for the appellant that, the First Appellate Court has committed an error in not considering the evidence on record adduced by the plaintiff. It is also contended by the learned counsel appearing for the appellant that the appellant has produced the election voter ID to establish that the plaintiff is in possession of ‘B’ schedule property and therefore, contended that, the said aspect of the matter has been ignored by the First Appellate Court. Accordingly, sought for interference of this Court.

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Per contra, the learned counsel appearing for the respondents sought to justify the impugned judgment and decree passed by the First Appellate Court.

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7 - NC: 2024:KHC:37867 RSA No. 2213 of 2018

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Having taken note of the submission made by the learned counsel appearing for the parties and on careful consideration of the finding recorded by the Trial Court, it would indicate that the plaintiff has stated that ‘A’ schedule property has been granted in favour of defendant No.1 as per Hakku Patra in No.207/1996-97 and the husband of the plaintiff was looking after defendant No.1 and her children and as such, constructed the house to the southern side of the ‘A’ schedule property and as such, claiming ownership in respect of ‘B’ schedule property. It is also forthcoming from the records that defendant No.1 is the sister of plaintiff’s husband and defendant No.2 is the son of defendant No.1. On the other hand, it is the contention of defendant No.1 that the plaintiff is not in possession of ‘B’ schedule property. It is also forthcoming from the evidence of PW1 and PW2 that the plaintiff is not in possession of ‘B’ schedule property. It is also pertinent to mention here that, the finding recorded by the Trial Court makes it clear that, the plaintiff is claiming the relief of declaration in respect of ‘B’ schedule property by stating

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that plaintiff is in possession of both ‘A’ and ‘B’ schedule property and both the properties had common bath room. In that view of the matter, taking into consideration of the fact that no document has been produced before the Trial Court by the plaintiff to establish her right in respect of suit schedule property, even otherwise, in order to claim the relief of declaration on the basis of perfection of title by the plaintiff, no date or time has been mentioned from which date, the plaintiff is in possession of ‘B’ schedule property as against the true owner, that is the Government. In that view of the matter, I find force in the submission made by the learned counsel appearing for the respondents that declaration cannot be granted to the plaintiff in the present appeal. The First Appellate Court after re-appreciating the material on record, particularly taking into consideration of the fact that the ‘A’ schedule property has been granted in favour of defendant No.1 and ‘B’ schedule property has not been granted to defendant No.1. Thus, it is clear that ‘B’ schedule property is not the property belonging to defendant No.1. In that

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view of the matter, the plaintiff cannot be permitted to interfere and disturb the possession and enjoyment of the ‘A’ schedule property, which is undoubtedly belonging to the defendants. In that view of the matter, taking into consideration the finding recorded by the First Appellate Court at paragraphs 32 and 33, I am of the view that the First Appellate Court has rightly reversed the judgment and decree passed by the Trial Court in O.S.No.8/2011. I am also aware that the divergent opinion of the Courts below has been questioned in this appeal. However, the First Appellate Court having taken note of the scope of Order 41 Rule 31 of CPC, rightly re-appreciated the material on record, as stated above. Therefore, I do not find any perversity in the judgment and decree passed by the First Appellate Court. In the result, the appeal fails as the plaintiff has not made out a case for formulation of substantial questions of law as required under Section 100 of CPC. Accordingly, the Regular Second Appeal is dismissed at the stage of admission, itself.

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10 -

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NC: 2024:KHC:37867 RSA No. 2213 of 2018

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In view of dismissal of the main appeal, I.A. if

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any, does not survive for consideration and the same stands disposed of.

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Sd/(E.S.INDIRESH) JUDGE

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Smt Prema v. Kausalya

Case brief

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Smt Prema v. Kausalya

Case brief

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