Dismissed
Prakash Harne v. Smt Kousalyabai
Karnataka HCRSA/527/2023
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2024:KHC:5836 RSA No. 527 of 2023 IN THE…
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2024:KHC:5836 RSA No. 527 of 2023 IN THE…
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NC: 2024:KHC:5836 RSA No. 527 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 527 OF 2023 (DEC/POS)
BETWEEN:
S/O CHANDROJIRAO, AGED ABOUT 49 YEARS,
OCC -COOLIE, R/AT MARATHA BEEDI HARIHARA TOWN, DAVANAGERE DISTRICT-577201.
…APPELLANTS
Digitally signed by SUMA B N Location: High Court of Karnataka
(BY SRI. HIREMATHAD MAHESHIAH RUDRAYYA.,ADVOCATE)
AND:
…RESPONDENT
(BY SRI. HALLI SHANTAPPA BASAPPA., ADVOCATE)
NC: 2024:KHC:5836 RSA No. 527 of 2023
RSA FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 18.10.2022 PASSED IN R.A.No.07/2020 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, HARIHAR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 30.11.2009 PASSED IN OS No.123/2013 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, HARIHARA.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is by the legal heirs of original defendant,
aggrieved by the judgment and decree dated 30.11.2019 passed in O.S.No.123/2013 by the Principal Civil Judge and JMFC, Harihara (for short “the trial Court”) which is confirmed by judgment and order dated 18.10.2022 in R.A.No.07/2020 on the file of Senior Civil Judge and JMFC, Harihara (for short “the First Appellate Court”).
NC: 2024:KHC:5836 RSA No. 527 of 2023
plaintiff’s husband under the registered deed of sale dated 18.11.1981 from the defendant and other family members. Thereafter, after execution of the sale deed, her husband Late Yashwantha Rao Harne was exercising his ownership and possession over the plaint schedule property with all the revenue records having been transferred in his name. The schedule property had been let out to a tenant for a period of 3 years who in turn had sub-let the property to another tenant. Thereafter the said tenant vacated and handed over the vacant possession of the property to the husband of the plaintiff. Husband of the plaintiff Sri.Yashwanth Rao passed away on 26.03.2002. Subsequent to demise of Yashwanth Rao,
the revenue records were mutated in the name of plaintiff, she being the legal heir of the said Yashwanth Rao. It is the contention of the plaintiff that the schedule property is constructed of mud and it was in dilapidated condition in the year 2008 and was lying vacant. The defendant being relative and also one of the Vendors of the schedule property had approached the plaintiff requesting her to
give permission to stay in the said house, assuring that he would have the schedule property repaired and would stay in the said property till he obtains a house in Ashraya Colony. Considering the relationship and request of the defendant, the plaintiff permitted the defendant to stay in the plaint schedule property. When the plaintiff approached the defendant to vacate and handover the schedule property after three months of his occupancy, the defendant requested to extend the permission to occupy the property for a period of one year, to which the plaintiff agreed. That after completion of one year, the defendant never vacated the schedule property, but agreed to pay Rs.800/- p.m., as rent. The defendant did not keep up the promise of paying the said rental. A panchayat was held with the help of the locals, but the defendant did not vacate the house, which constrained the plaintiff to issue notice on 23.03.2013. Despite receipt of the same, the defendant refused the request of the plaintiff to vacate the premises which constrained the plaintiff to approach the Court for the relief as sought for.
NC: 2024:KHC:5836 RSA No. 527 of 2023
pendency of the suit. His sons were brought on record as defendant No.1(a) and 1(b). In the written statement filed by the defendants, it is specifically contended that the
suit schedule property is ancestral joint family property of the defendant and also of the husband of the plaintiff and other co-parceners. One Nagoji Rao was the propositus of
the joint family of the plaintiff and defendants who had four sons by name, Haloji Rao, Hanumantha Rao, Bhima Rao and Shivaji Rao who are no more. Hanumantha Rao died leaving behind Krishnoji Rao, Nagaraj Rao and Vittal Rao as his legal representatives. The said Krishnoji Rao died unmarried. Vittal Rao died leaving behind his wife Lalitha Bai and sons Laxman, Vasu and Raghavendra. The son Vasu is no more. Shivaji Rao died leaving behind Yashwanth Rao i.e., husband of the plaintiff, Shambhoji
Rao, Ammu Rao, Ananda Rao, Nagaraj as his legal representatives. There is no partition and separate possession of the schedule property. The original
NC: 2024:KHC:5836 RSA No. 527 of 2023
defendant along with his sons is in peaceful possession and enjoyment of the schedule property for over 50 – 60 years without any interference. That the husband of the plaintiff was in dominant position as he was working in Birla Company at Kumarapattanum. The defendants and
other family members were illiterates, as such, the said Yashwanth Rao got the bogus documents prepared in order grabbing the suit schedule property. The said document was never signed by any persons much less, Lalitha Bai, Hanumanth Rao, Nagoji Rao. There was no
execution of sale deed as contended by the plaintiff. Neither the plaintiff nor her husband were the owners of the suit schedule property and the defendants had perfected their right, title and interest over the suit schedule property by adverse possession. There was a suit in O.S.No.66/1996 filed by one Revanasiddappa, a neighbouring owner against the defendants, as they were constructing a new house over the suit schedule property. Thus, sought for dismissal of the suit.
NC: 2024:KHC:5836 RSA No. 527 of 2023
the following issues for its consideration:
1. Whether the plaintiff proves that she is the absolute owner and enjoyment of the suit schedule property?
2. Whether the plaintiff proves that the defendant is in permissive possession of the suit schedule property?
3. Whether the plaintiff is entitle for relief of declaration of title?
4. Whether the plaintiff is entitle for delivery of possession of suit schedule property?
5. Whether the plaintiff is entitle for any mesne profits?
6. What order or decree?
ADDITIONAL ISSUE NO.1
Whether the defendant No.1(a) and 1(b) proves that this Court has no pecuniary jurisdiction to try this suit?
the evidence, the trial Court answered additional issue and
issue No.2 in the negative and issue Nos.1, 3, 4 and 5 in
the affirmative and consequently, decreed the suit with
cost, declaring the plaintiff as absolute owner of the plaint schedule property and directed the defendants to vacate and handover possession of the property. Aggrieved by
the same, the defendants preferred R.A.No.07/2020
NC: 2024:KHC:5836 RSA No. 527 of 2023
before the First Appellate Court. The First Appellate Court considering the grounds urged therein framed the following points for its consideration:
CA±À-1. «ZÁgÀuÁ £ÁåAiÀiÁ®AiÀĪÀÅ ¢£ÁAPÀ 30.11.2019 gÀAzÀÄ ªÀÄÆ® zÁªÁ £ÀA.123/2013 gÀ°è ¤ÃrgÀĪÀAvÀºÀ wÃ¥ÀÄð ªÀÄvÀÄÛ rQæ PÁ£ÀÆ£ÀħzÀÞªÁV®è J£ÀÄߪÀÅzÀ£ÀÄß ªÉÄîä£À«zÁgÀgÀÄ ¸Á©üÃvÀÄ¥Àr¹zÁÝgÉAiÉÄÃ?
CA±À-2. «ZÁgÀuÁ £ÁåAiÀiÁ®AiÀĪÀÅ ªÁ¢AiÀÄÄ PÁ®¥Àj«Äw «ÄÃj zÁªÁ ¸À°è¹zÁÝgÉ ªÀÄvÀÄÛ ¥ÀæwªÁ¢AiÀÄÄ 12 ªÀµÀðUÀ½UÉ ªÉÄîàlÄÖ zÁªÁ D¹ÛAiÀÄ°è ¥ÀæwPÀÆ® ¸Áé¢üãÁ£ÀĨsÀªÀzÀ°èzÁÝgÉAzÀÄ ¤tð¬Ä¸ÀĪÀ°è «¥sÀ®ªÁVzÉ JAzÀÄ ªÉÄîä£À«zÁgÀgÀÄ ¸Á©üÃvÀÄ¥Àr¹zÁÝgÉAiÉÄÃ?
CA±À-3. AiÀiÁªÀ DzÉñÀ?
and first appellate Court ought to have appreciated the long and undisturbed possession of the defendant over 50
to 60 years. That trial Court and first appellate Court failed to appreciate Ex D1 to D48 proof of long residence of the defendants in suit schedule property, as such the suit of the plaintiff was barred by law.
of the plaintiff by the father of the defendant and other members of the family. The said deed of sale has remained unchallenged till date. Pursuant to the said deed of sale, revenue records have been mutated in the name of Yashwanth Rao. Upon his demise in the year 2002, the revenue records have been mutated in the name of the plaintiff. The suit schedule properties had been leased out
to tenants during the life time of Yashwanth Rao. The plaintiff has produced the sale deed and revenue records and also tax paid receipts as taken note of by the trial
Court and First Appellate Court. On the other hand, the defendants who claimed that sale deed was fabricated and that the suit schedule property being joint family property has been in their possession and enjoyment and that there was no partition of the same, has not produced any acceptable evidence.
that property continued to be the joint family property. Production of Ex.D1 to D48 by the defendants regarding
NC: 2024:KHC:5836 RSA No. 527 of 2023
long duration of residence alone is not sufficient to nonsuit the plaintiff and to confer the rights and title in favour of the defendants. The trial Court and First Appellate Court having adverted to the facts of the case and applicable provisions of law, in the opinion have come to a just conclusion in decreeing the suit as sought for, no substantial questions of law would arise for consideration, as such, the appeal is dismissed.
In view of dismissal of the appeal, the pending I.A. does not survive for consideration. Accordingly, the same is rejected.
Sd/JUDGE
MPK
List No.: 2 Sl No.: 16
1 provisions across 1 enactments
Prakash Harne
Nagaraja Harne
Smt Kousalyabai
M.G.S. Kamal
As recorded by the court registry
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