Dismissed

Sri Thammaiah Shetty v. Sri G v Ramachandra

Karnataka HC6 Nov 2024RSA/619/2011

Case brief

AI extract

What is this about?

Second appeal by defendants against a first appellate decree declaring plaintiff owner of survey no.11/5 based on a 1977 sale deed and ordering defendants to vacate. The High Court found no specific plea on boundaries or limitation had been raised below, held proposed substantial questions did not arise, and dismissed the appeal.

What did the court decide?

Appeal dismissed; first appellate Court's decree in favour of plaintiff stands.

Sri Thammaiah Shetty Vs Sri G v Ramachandra — Property and Title | Karnataka HC (2024)

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1 - NC: 2024:KHC:44726 RSA No. 619 of 2011

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6^TH DAY OF NOVEMBER, 2024

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BEFORE THE HON'BLE MR JUSTICE RAVI V HOSMANI REGULAR SECOND APPEAL NO. 619 OF 2011 (DEC) BETWEEN:

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SRI THAMMAIAH SHETTY S/O.LATE PAPAIAH SHETTY, AGED ABOUT 77 YEARS, R/AT.GURUVAIAHANA KOPPALU, THAMMADAHALLI POST, BETTADAPURA HOBLI, PERIYAPATNA TALUK, MYSORE DISTRICT - 571 102.

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SRI KANTHARAJU S/O.LATE PUTTASWAMY SHETTY, AGED ABOUT 57 YEARS, R/AT.GURUVAIAHANA KOPPALU,

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THAMMADAHALLI POST, BETTADAPURA HOBLI, PERIYAPATNA TALUK, MYSORE DISTRICT - 571 102.

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SRI CHANDRA SHETTY S/O.LATE PUTTASWAMY SHETTY, AGED ABOUT 52 YEARS, R/AT.GURUVAIAHANA KOPPALU, THAMMADAHALLI POST, BETTADAPURA HOBLI, PERIYAPATNA TALUK, MYSORE DISTRICT - 571 102.

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Digitally signed by ANUSHA V Location: High Court Of Karnataka

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SRI SANNAPPA SHETTY S/O.LATE PUTTASWAMY SHETTY, AGED ABOUT 47 YEARS, R/AT.GURUVAIAHANA KOPPALU, THAMMADAHALLI POST, BETTADAPURA HOBLI, PERIYAPATNA TALUK, MYSORE DISTRICT - 571 102.

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2 - NC: 2024:KHC:44726 RSA No. 619 of 2011

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SRI KRISHNA SHETTY S/O.LATE THAMMAIAH SHETTY, AGED ABOUT 47 YEARS, R/AT.GURUVAIAHANA KOPPALU, THAMMADAHALLI POST, BETTADAPURA HOBLI, PERIYAPATNA TALUK, MYSORE DISTRICT - 571 102.

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…APPELLANTS

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(BY SRI. H C SUNDARESH., ADVOCATE)

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AND:

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SRI G V RAMACHANDRA S/O LATE. VENKATAPPA SHETTY, AGED ABOUT 64 YEARS, R/AT.GURUVAIAHANA KOPPALU, THAMMADAHALLI POST, BETTADAPURA HOBLI, PERIYAPATNA TALUK, MYSORE DISTRICT - 571 102.

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1(A). SMT. KALYANAMMA W/O LATE. G.V.RAMACHANDRA, AGED ABOUT 60 YEARS, R/A GURUVAIAHANA KOPPALU, THAMMADAHALLI POST, BETTADAPURA HOBLI, PERIYAPATNA TALUK, MYSORE DISTRICT.

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1(B). SMT. SAVITHA D/O LATE. G.V.RAMACHANDRA, AGED ABOUT 48 YEARS, R/A GURUVAIAHANA KOPPALU, THAMMADAHALLI POST, BETTADAPURA HOBLI, PERIYAPATNA TALUK, MYSORE DISTRICT.

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1(C). SRI. CHANDRASEHAKR

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3 - NC: 2024:KHC:44726 RSA No. 619 of 2011

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S/O LATE. G.V.RAMACHANDRA, AGED ABOUT 44 YEARS, R/A GURUVAIAHANA KOPPALU, THAMMADAHALLI POST, BETTADAPURA HOBLI, PERIYAPATNA TALUK, MYSORE DISTRICT.

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1(D). SRI. GIRISH S/O LATE. G.V.RAMACHANDRA, AGED ABOUT 35 YEARS, R/A GURUVAIAHANA KOPPALU, THAMMADAHALLI POST, BETTADAPURA HOBLI, PERIYAPATNA TALUK, MYSORE DISTRICT.

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1(E). SMT. SUNITH D/O LATE. G.V.RAMACHANDRA, AGED ABOUT 30 YEARS, R/A GURUVAIAHANA KOPPALU, THAMMADAHALLI POST, BETTADAPURA HOBLI, PERIYAPATNA TALUK, MYSORE DISTRICT.

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…RESPONDENTS

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(BY SRI. NAGENDRA SHETTY., ADVOCATE FOR R1(A TO E))

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 01.12.2010 PASSED IN R.A.NO.118/2009 (OLD R.A.NO.16/2006) ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE & JMFC,HUNSUR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED: 22.12.2005 PASSED IN O.S.NO.106/1998 ON THE FILE OF THE CIVIL JUDGE (JR.DN)AND JMFC,PERIYAPATNA.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI

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4 - NC: 2024:KHC:44726 RSA No. 619 of 2011

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ORAL JUDGMENT

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Challenging judgment and decree dated 01.12.2010 passed by Additional Senior Civil Judge and JMFC, Hunsur, sitting at Periyapatna in R.A.no.118/2009 and judgment and decree dated 22.12.2005 in O.S.no.106/1998 passed by Civil Judge (Junior Division) and JMFC, Periyapatna, this appeal is filed.

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Brief facts as stated are that appellants herein

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were defendants in suit filed by respondent/plaintiff for declaration of title and possession of suit property. In plaint, it was stated that survey no.11/5, measuring 11 guntas, situated at Thammadahalli village, was suit property. Plaintiff had become absolute owner of suit property by virtue of sale deed dated 19.12.1977. It was stated that from date of purchase, plaintiff was in possession and enjoyment of suit property. In month of May, plaintiff was not in station, defendants illegally dispossessed plaintiff from suit property and illegally cultivated land. On return to village, plaintiff requested for

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5 - NC: 2024:KHC:44726 RSA No. 619 of 2011

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handing back possession. Since same was refused, cause of action for filing suit had accrued and plaintiff had filed suit.

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In suit, defendant no.5 remained ex-parte. Defendant no.2 filed written statement which was adopted by defendants no.1, 3 and 4 mainly denying plaint averments and specifically contending that suit property was ancestral property of defendants and they were in exclusive possession and enjoyment. They stated disputed plaintiff was never in possession of suit property. They also denied purchasing of suit property under sale deed dated 19.12.1977. They alleged that plaintiff, in collusion with revenue authorities, had got revenue records mutated. It was stated that plaintiff had no right and with wrong intention, by making out false story of dispossession, had filed suit. Hence, sought for its dismissal.

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Based on pleadings trial Court framed following

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issues:

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6 - NC: 2024:KHC:44726 RSA No. 619 of 2011

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"1. Whether the Plaintiff proves that he is the absolute owners of the suit schedule property?

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2. Whether the plaintiff further proves that he is entitled to get the possession of the suit schedule property from the defendants?

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3. Whether the court fee paid by the plaintiff is sufficient?

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4. Whether the plaintiff is entitled to get decree as prayed for?"

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5. What decree or order?

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Thereafter, plaintiff examined himself and two

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others witnesses as PW.1 to PW.3 and got marked documents as Ex.P1 to Ex.P28. While defendant no.2 and

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two others were examined as DW.1 to DW.3 and got marked documents as Ex.D1 to Ex.D7.

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6. On consideration, trial Court answered issue

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no.1 in negative, issue no.3 in affirmative, issues no.2, 4 and 5 by dismissing suit.

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Aggrieved thereby, plaintiff filed R.A.no.118/2009 on several grounds. Based on

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NC: 2024:KHC:44726 RSA No. 619 of 2011

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contentions urged, first appellate Court framed following

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points for its consideration.

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"1.whether the plaintiff has proved his absolute title and ownership over the suit schedule property, as per the boundary shown in the plaint schedule?

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2.whether the impugned judgment and decree dated 22-12-2005 passed by the trial Court in OS.No.106/1998 in dismissing the suit is against law, facts, evidence and probabilities of the case and as such it is liable to be interfered with by this court?

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3. what order or decree?"

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By answering points no.1 and 2 in affirmative,

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first appellate Court allowed appeal and set aside judgment and decree passed by trial Court and decreed plaintiff's suit, declaring plaintiff as absolute owner of suit schedule property and directing defendants to vacate and hand over possession of suit property to plaintiff within three months. Being aggrieved, defendants are in appeal.

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Sri. H.C.Sundaresh, learned counsel for

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appellants, submitted while trial Court had considered contentions of defendants and dismissed suit on finding

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8 - NC: 2024:KHC:44726 RSA No. 619 of 2011

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that there was dispute regarding boundaries of suit property and holding suit was barred by limitation, first appellate Court reversed findings on untenable grounds.

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First appellate Court failed to take note of defendant's contention that suit property was their ancestral property substantiated by Exs.D1 to D7. It was further submitted as per plaintiff, he had purchased 5 properties under sale deed dated 19.12.1977 namely Survey nos.10/5, 10/6, 11/2, 11/3 and 11/5.

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In plaint suit schedule mentioned boundaries as shown in sale deed. Trial Court had appreciated this aspect and dismissed suit on ground of improper description of suit property. First appellate Court reversed same by observing that when purchase of suit property under Ex.P1 - sale deed was established, description of suit property where common boundaries as per Ex.P1 - sale deed would not be fatal, which would be contrary to law.

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NC: 2024:KHC:44726 RSA No. 619 of 2011

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Hence, following substantial questions of law would arise for consideration.

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"1.Whether the plaintiff has proved his alleged right, title and ownership over the suit property in accordance with law?

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2. Whether the plaintiff had approached the Court with clean hands?

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3. Whether the 1st appellate Court was right in allowing the appeal and reversing the Judgment and Decree of the Trial Court, by giving its own assumed findings and conclusions, having regard to the facts and circumstances of the case and also evidence on record?"

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Heard learned counsel for appellants, perused impugned judgment and decree and records. None appears for respondents.

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From above, it is seen that present appeal is filed by defendants challenging judgment and decree passed by first appellate Court mainly on two grounds, i.e., first appellate Court failed to consider defendants contention that suit property was their ancestral property as indicated in Exs.D1 to D7 and that there was improper

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NC: 2024:KHC:44726 RSA No. 619 of 2011

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10 -

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description of boundaries of suit property and therefore granted decree based on incorrect boundaries would be contrary to law.

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Insofar as incorrect boundary description of suit

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property in plaint is as follows:

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��ಾಪಟ�ಣ �ಾಲೂ�ಕು, �ೆಟ�ದಪ�ರ �ೋಬ�, ಗುರುವಯ�ನ�ೊಪ�ಲು �ಾ ಮ�ೆ" #ೇ�ದ ಸ%ೆ& ನಂ. 115, ()*ೕಣ& 11 ಗುಂ+ೆ ಜ-ೕನು ಕಂ.ಾಯ 0-45 /ೈ#ೆಗ1ಾ2ದು3, ಇದರ ಚಕು"ಬಂ6ಯು

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ಪ7ವ&�ೆ": :ೇ; ಅ/ಾ�=>ೆಟ�ರ �ೆಂಡ@ ಸುಬAಮBನವರ #ಾCDೕEಾನುಭವದG�ರುವ ಸ%ೆ& ನಂ.11/7ರ ಜ-ೕನು.

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ಪIJಮ�ೆ": :ೇ; ಅ/ಾ�=>ೆಟ�ರ �ೆಂಡ@ ಸುಬAಮBನವರ #ಾCDೕEಾನುಭವದG�ರುವ ಸ%ೆ& ನಂ.10ರ ಜ-ೕನು.

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ದKಣ�ೆ" : =.(. Lಾಮಚಂದ , ಅಂದLೆ %ಾ6ಯ ಒNೆತನ �ಾಗೂ #ಾCDೕನದG�ರುವ ಸ%ೆ& ನಂ.11/6Eೇ ಜ-ೕನು.

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ಉತರ�ೆ" : �ಾಂತLಾಜು �ಾಗೂ ಕೃಷS>ೆT� ಅಂದLೆ , ಪ @%ಾ6 2 ಮತು 5 ರವರುಗಳ #ಾCDೕನದG�ರುವ ಸ%ೆ& ನಂ.11/4Eೇ ಜ-ೕನು.

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On perusal of written statement filed by

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defendants would reveal that except denying plaint averments, there is no specific plea taken about incorrect description of suit property or about suit being barred by limitation. Issues framed by trial Court would also indicate

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11 -

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NC: 2024:KHC:44726 RSA No. 619 of 2011

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that no specific issue is being framed in this regard. Parties have prevented trials based on issue framed.

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It is also seen that during cross-examination of plaintiff, it is elicited that under Ex.P1 - sale deed, plaintiff had purchased 5 properties and description of suit property was as per sale deed. There is no specific suggestion that there was an improper description. There are no suggestion that description of suit schedule was in respect of different extent than suit property. The witness has sustained cross-examination. There are no material elicitations that would render his deposition unbelievable. PW.2 and PW.3 had supported deposition of plaintiff no.1. In support of plaintiff's contention, plaintiff has perused original register sale deed as per Ex.P1. Same is called out with record of rights to suit property during various years. Ex.P10 is survey sketch of properties purchased. Same would indicate demarcation of property and survey of suit schedule property.

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12 - NC: 2024:KHC:44726 RSA No. 619 of 2011

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While passing judgment and decree, trial Court observed that contrary to specific pleadings and claim schedule, plaintiff had produced records indicating situation of suit property in Thammadahalli village, whereas in plaint, it was shown as situated in Guruvaiahana koppalu village. Said observation would be contrary to record as there is an amendment of plaint and correction of schedule showing suit property is situated in Thammadahalli village.

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Insofar as trial Court refers to suggestion made to PW.1 regarding boundary description to conclude that it was more probable that plaintiff had not established boundaries of suit property. In absence of specific plea disputing boundary description and plaintiff having amended suit schedule property insofar as village wherein suit property was situated, findings of trial Court are weighed heavily on incorrect description of suit property.

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13 - NC: 2024:KHC:44726 RSA No. 619 of 2011

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It is also seen that trial Court applied period of limitation under Article 58 of Limitations Act and held suit filed in year 1998 on 07.09.1998 in respect of cause of action that accrued in June 1995 and was barred by limitation.

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While passing judgment and decree, first appellate Court has taken note of fact that there was no contention raised about suit being barred by limitation before trial Court. No specific issue had been framed and it was also held that since suit was filed not only for declaration of title but also for possession, period of limitation applicable would be Article 74 and not Article 58.

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Insofar as contention of improper boundary description, it is found that plaintiff had established acquisition of title in respect of suit property as per Ex.P1sale deed and Ex.P10 and Ex.P11, survey sketch would duly corroborate plaintiff title.

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14 -

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NC: 2024:KHC:44726 RSA No. 619 of 2011

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First appellate Court has also referred to material placed by defendants to conclude that there was no basis for entry of name of defendant no.2 in revenue records of suit property. Therefore, first appellate Court has passed judgment and decree after re-appreciation of entire material on record and by assigning reasons.

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In view of fact that there was no specific plea taken by defendants before trial Court about improper boundary description or about period of limitation, reversal of decree and judgment passed by trial Court and first appellate Court is based on some principles of law. Therefore, substantial questions of law proposed do not arise for consideration. Hence appeal is dismissed .

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In view of dismissal of the appeal, pending

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applications also stand disposed of accordingly.

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Sd/(RAVI V HOSMANI) JUDGE

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AM/List No.: 1 Sl No.: 27

Sri Thammaiah Shetty v. Sri G v Ramachandra

Case brief

What is this about?

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Sri Thammaiah Shetty v. Sri G v Ramachandra

Case brief

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