Dismissed

Sri. Shivakumar v. Sri. Chandrappa

Karnataka HC14 Jun 2024RSA/76/2021

Case brief

AI extract

What is this about?

Plaintiff's suit for declaration of title and recovery of possession over land, claiming a mortgage by her husband, was dismissed by both courts below, which found the defendant in possession under a 1996 sale agreement protected by Section 53A of the Transfer of Property Act. The High Court found no error or substantial question of law and dismissed the second appeal.

What the court decided

AI extract

Sri. Shivakumar Vs Sri. Chandrappa — Specific Performance | Karnataka HC (2024)

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1 - NC: 2024:KHC:21431 RSA No. 76 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 14^TH DAY OF JUNE, 2024

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BEFORE

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THE HON'BLE MR JUSTICE H.P.SANDESH

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REGULAR SECOND APPEAL NO.76 OF 2021 (DEC)

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BETWEEN:

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SRI. SHIVAKUMAR

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SON OF LATE SHIVANANDAPPA, AGED ABOUT 39 YEARS, RESIDING AT SANTHEBENNUR VILLAGE, SANTHEBENNUR HOBLI, CHANNAGIRI TALUK, DAVANAGERE DISTRICT-577 213.

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SRI. SURESH

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SON OF LATE SHIVANANDAPPA, AGED ABOUT 43 YEARS,

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Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA

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RESIDING AT SANTHEBENNUR VILLAGE,

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SANTHEBENNUR HOBLI,

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CHANNAGIRI TALUK, DAVANAGERE DISTRICT-577 213.

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SRI. N. S. CHANDRAPPA SON OF LATE SHIVANANDAPPA, AGED ABOUT 47 YEARS, RESIDING AT SANTHEBENNUR VILLAGE, SANTHEBENNUR HOBLI, CHANNAGIRI TALUK, DAVANAGERE DISTRICT-577 213.

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SMT. AKKAMMA

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WIFE OF LATE PARAMESHWARAPPA,

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AGED ABOUT 50 YEARS, RESIDING AT LAKSHATTIHALLI VILLAGE, BANUVALLI POST, HARIHARA TALUK, DAVANAGERE DISTRICT-577 213.

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SMT. GEETHAMMA WIFE OF GURUSHANTHAPPA, AGED ABOUT 53 YEARS, RESIDING AT TODARANAHALLI VILLAGE, T. NLENOORU POST, HOLALKERE TALUK, CHITRADURGA DISTRICT.

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…APPELLANTS

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(BY SRI SIDDAMALLAPPA P M, ADVOCATE) AND:

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SRI. CHANDRAPPA SON OF LATE KENCHAPPA, AGED ABOUT 58 YEARS, RESIDING AT ANNEHAL VILLAGE, CHITRADURGA TALUK, CHITRADURGA DISTRICT -577 [SINCE DEAD BY LRS]

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1A. SMT. MAHADEVAMMA W/O LATE CHANDRAPPA AGED ABOUT 55 YEARS R/AT ANNEHAL VILLAGE CHITRADURGA TALUK CHITRADURGA DISTRICT-577 555

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1B. SRI MALLIKARJUN S/O LATE CHANDRAPPA AGED ABOUT 33 YEARS R/AT ANNEHAL VILLAGE CHITRADURGA TALUK CHITRADURGA DISTRICT-577 555

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3 - NC: 2024:KHC:21431 RSA No. 76 of 2021

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1C. SRI LAKSHMIKANTHRAJ S/O LATE CHANDRAPPA AGED ABOUT 28 YEARS R/AT ANNEHAL VILLAGE CHITRADURGA TALUK CHITRADURGA DISTRICT-577 555

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1D. SRI DIWAKAR S/O LATE CHANDRAPPA AGED ABOUT 25 YEARS R/AT ANNEHAL VILLAGE CHITRADURGA TALUK CHITRADURGA DISTRICT-577 555

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…LRS OF RESPONDENT

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(BY SRI R GOPAL, ADVOCATE FOR LRS OF R1(A-D))

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THIS RSA IS FILED UNDER SEC.100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 04.09.2020 PASSED IN RA NO.94/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., AT CHANNAGIRI AND ETC.

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

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NC: 2024:KHC:21431 RSA No. 76 of 2021

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J U D G M E N T

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This matter is listed for admission. Heard the

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learned counsel appearing for the respective parties.

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The factual matrix of the case of the plaintiff before the Trial Court that the husband of deceased plaintiff – Rathnamma is the absolute owner of the land bearing Sy.No.80/1A2 measuring 1 acre 24 guntas situated at Santhebennur village, Channagiri taluk. The said Shivanandappa died on 14.04.2009 and thereafter the khata in respect of the suit schedule property got mutated in the name of deceased plaintiff-Rathnamma being the wife of said Shivanandappa under IHC proceeding bearing M.R.No.08/2010-11. It is the contention of the plaintiff that during the lifetime of said Shivanandappa, he had borrowed a loan of Rs.38,000/- from the defendant mortgaging the suit schedule property with a condition to release the mortgage after obtaining 6 crops in the suit schedule property. After the death of Shivanandappa, the deceased plaintiff requested the defendant to hand over

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the possession of the suit schedule property but the defendant had dragged on to vacate the same on one or the other reason. Thereafter, on 25.07.2012, when the plaintiff entered into the suit schedule property with an intention to cultivate the same, the defendant tried to obstruct for the same. Hence, the plaintiff has filed the suit. In pursuance of the suit summons, the defendant appeared and filed the written statement contending that the defendant had purchased the suit schedule property by Shivanandappa in the year 1996 for sale consideration of Rs.38,400/-. Consequently, Shivanandappa had executed the sale agreement on 21.10.1996 and handed over the possession of the suit schedule property to the defendant. Since the khata was not got mutated in the name of the Shivanandappa, regular sale deed was not got registered in his favour. But the defendant is in possession of the property in terms of the sale agreement.

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3. The Trial Court after considering the pleadings

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of the parties framed the Issues and allowed them to lead

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their evidence. In order to prove the case of the plaintiff, two witnesses have been examined as PW1 and PW2 and also got marked the documents at Ex.P1 to P13. On the other hand, the defendant examined three witnesses as DW1 to DW3 and got marked the documents at Ex.D1 and D2 and signatures on Ex.D2 were marked as Ex.D2(a) to

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(g) respectively. The Trial Court considered evidence of PW1 wherein he categorically admitted that they are cultivating the land from the year 1996 and thereafter, immediately changed the version that portion of the property was cultivating and thereafter not cultivated. The

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Trial Court also taken note of the contents of the document at Ex.D2 and also the evidence of witnesses with regard to the execution of Ex.D2 and comes to the conclusion that the plaintiff is not the owner and not in possession of the suit schedule property and dismissed the suit.

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4. Being aggrieved by the judgment and decree of

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the Trial Court, an appeal was preferred by the legal

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representatives of the plaintiff wherein the First Appellate Court considering the grounds urged in the appeal memo formulated the points and having taken note of the material on record particularly, the admission of PW1 wherein he admits that during the lifetime of his father, the defendant Chandrappa used to cultivate the suit schedule property and defendant’s possession also admitted since from the year 1996 and also extracted the evidence of the witnesses in paragraph 16 and 18 wherein it is contended that document is a lease deed not the sale agreement. The First Appellate Court taking note of Section 53A of the Transfer of Property Act comes to the conclusion that Ex.D2-sale deed has been executed by the husband of deceased plaintiff in favour of defendant and put him possession in terms of the sale agreement in the year 1996 and dismissed the appeal. Being aggrieved by the concurrent finding of both the Courts, the present appeal is filed before this Court.

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The counsel for the appellants would

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vehemently contend that both the Courts have committed an error in coming to the conclusion that it is only a lease document and not the sale agreement. Inspite of plaintiff produced the documents at Ex.P1 to P13 which evidence the fact that the property belongs to the husband of the deceased plaintiff and after the death of her husband, the property was transferred in the name of the deceased plaintiff. But both the Courts failed to mould the relief on judicious appraisal of the documents at Ex.D1 and D2 which stand on clear terms proof of title with the appellants over the suit schedule property and committed an error in dismissing the suit of the plaintiff holding that the plaintiff is not entitled for any relief. The counsel submits that this Court has to frame the substantial questions of law that both the Courts have committed an error in dismissing the suit of the plaintiff for declaration of title and recovery of possession without considering the pleadings and evidence on record and both the Courts are justified in passing the judgment and decree dismissing

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the suit when the remedy under Ex.D2 cannot be persuaded or defeated.

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The learned counsel appearing for the respondent would vehemently contend that the document of sale agreement is produced as Ex.D2 and apart from that the attesting witnesses to the document at Ex.D2 have also been examined before the Trial Court and both the Courts have taken note of material placed on record particularly, the signature of husband of the deceased plaintiff available at Ex.D2 as Ex.D2(b) and (d) and signatures of the attesting witnesses as well as the admission on the part of PW1 himself that in the year 1996 itself the possession was delivered to the defendant and the defendant was cultivating the land since 1996. Though it is suggested that Ex.D2 is the lease deed and the same was denied and pleading is also contrary to the case of the plaintiff and this contractions are elicited from the mouth of witnesses. Hence, both the Courts have not

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accepted the case of the plaintiff since there are contradictions in her own case.

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Heard the learned counsel appearing for the respective parties and perused the material available on record. The pleading of the plaintiff that an amount of Rs.38,000/- was borrowed from the defendant contending that it was only a mortgage with a condition to release the mortgage after obtaining 6 crops in the suit schedule property. In order to substantiate the contention that it was only a mortgage for Rs.38,000/-, no such piece of material is placed before the Court. However, Trial Court taken note of the admission on the part of PW1 himself that since 1996, the defendant is in possession of the suit schedule property as per Ex.D2 and cultivating the said property and the same is discussed in paragraphs 15 and 16 by the Trial Court in its judgment. In paragraphs 17 and 18, the Trial Court comes to the conclusion that there are contractions in the evidence of plaintiff, thus the case of the plaintiff is not accepted. The First Appellate Court

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also while are-appreciating the material on record particularly taken note of admission on the part of PW1 wherein he categorically admits that defendant used to cultivate the suit schedule property even when her husband was alive and in paragraph 16 also taken note of the suggestion made to the witness and in paragraphs 18 and 19 taken note of the admission that the possession of the property has been handed over to the defendant as per sale agreement entered way back in the year 1996 and also taken note of Section 53A of the Transfer of Property Act and comes to the conclusion that the defendant is in possession of the suit schedule property by paying valid consideration as per Ex.D2 from the year 1996. Hence, I do not find any error committed by both the Courts in appreciating and re-appreciating both oral and documentary evidence placed on record. When such being the case, I do not find any ground to frame substantial questions of law invoking Section 100 of CPC when there is no ground to admit the second appeal.

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In view of the discussions made above, I pass

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the following:

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ORDER

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The regular second appeal is dismissed.

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Sd/JUDGE

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Sri. Shivakumar v. Sri. Chandrappa

Case brief

What is this about?

What the court decided

Sri. Shivakumar v. Sri. Chandrappa

Case brief

What is this about?

What the court decided

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